The Ashers “gay cake” verdict is a victory for freedom of expression

The law should not force businesses to take political standpoints

October 12, 2018
The Supreme Court ruled this week in favour of Ashers bakery. Photo: Victoria Jones/PA Wire/PA Images
The Supreme Court ruled this week in favour of Ashers bakery. Photo: Victoria Jones/PA Wire/PA Images

The Christian owners of Ashers bakery in Belfast have won a UK Supreme Court appeal, reversing two earlier lower court rulings. They were previously found to have discriminated against a gay customer on the grounds of sexual orientation by refusing to decorate a cake with the words “support gay marriage.”

As a freedom of expression and human rights defender, I believe that people should have the right to express ideas with which they agree and also to refuse to facilitate ideas with which they disagree. That is why I am delighted the Supreme Court ruled that Ashers was not acting unlawfully when it declined Gareth Lee’s request, on the grounds that it conflicted with their beliefs.

I say this as someone who strongly disagrees with Ashers’ backing for the Northern Ireland ban on same-sex marriage.

This argument about not being forced to support ideas that a person finds objectionable cuts both ways. For example, I do not believe that a gay baker should be pressured, under threat of legal sanction, to decorate a cake with a message against same-sex marriage.

Ashers did not discriminate against the customer who ordered the cake because he was gay. His sexual orientation was not an issue. They agreed to make Lee’s cake but merely declined to decorate it with the wording requested. This was not discrimination on the grounds of sexual orientation because, as the Supreme Court pointed out, Ashers would have refused that message even if it had been asked for by a heterosexual person. The bakery’s objection was to the wording.

Although most Christians in Britain support same-sex civil marriage in register offices, the owners of Ashers bakery say their faith requires them to oppose gay marriage and anything that endorses it. Since when has discrimination been a Christian value?

Yet if the Supreme Court had ruled against them it would have established the unwelcome principle that businesses cannot legally refuse an equivalent request, even if it is sexist, xenophobic or anti-gay—and even if the business owners object to it. Freedom of expression includes the right to not facilitate ideas that a person opposes.

The Ashers case is different from the Christian B&B owner in Berkshire, Susanne Wilkinson, who in 2010 refused to accommodate a same-sex couple. This was direct discrimination against two men because they were gay. They were turned away because of their sexual orientation, not because of their beliefs or any message they wanted to propagate.

The Ashers judgment does not just have implications for the LGBT-community. If the Supreme Court ruling had gone the other way, potentially it could have meant that a Muslim printer would be obliged by law to publish the cartoons of Mohammed, or posters in praise of Tommy Robinson who stands accused of promoting anti-Muslim hatred. It could have also meant that a Jewish printer would be legally required to publish a book that propagates Holocaust denial or the fake Protocols of the Elders of Zion.

Equality law is intended to protect against discrimination. A business providing a service to the public has a legal duty to do so without discrimination based on race, gender, disability, faith, age, sexuality and so on. That is right and proper.

But requiring Ashers and others to aid the dissemination of ideas that conflict with their conscience would have set a dangerous, authoritarian precedent. It would have been incompatible with individual freedom.

The Supreme Court was right. These principles are worth defending.