This essay, on the row in debate about Ashers, the Northern Irish bakers that refused to make a cake with a pro-gay marriage slogan, was the main part of my Observer column this week. (The column included also a short piece on the changing attitudes of left and right towards the House of Lords.) It was published in the Observer, 6 May 2018, under the headline ‘The ‘gay cake’ fight: why the bakers had a right to refuse this order’.
It’s the case of the cake that wasn’t baked. And the story of how the icing on that cake became, bizarrely, an exhibit in the contemporary culture wars.
In 2014 Gareth Lee, an LGBT activist, asked Ashers bakery in Belfast to make a cake decorated with images of the Sesame Street puppets Bert and Ernie, together with the slogan: ‘Support gay marriage’. Ashers declined the order as the message ran contrary to the owners’ Christian beliefs.
The Equality Commission, to whom Lee took his case, sued Ashers for discrimination. The courts found the bakery to have unlawfully discriminated against Lee on grounds of sexual orientation and religious belief or political opinion. Last week, the supreme court heard Ashers’ appeal against that decision. It’s not expected to deliver its verdict for a few months.
At the heart of the case are two issues that have got muddled. The first is that of discrimination against an individual by virtue of his sexuality or religious or political beliefs. The second is the freedom to express one’s beliefs. Such freedom must necessarily include also the right not to express a view with which with one disagrees.
‘Although I strongly disagree with Ashers’ opposition to marriage equality,’ the veteran LGBT and human rights campaigner Peter Tatchell has observed, ‘in a free society neither they nor anyone else should be compelled to facilitate a political idea that they oppose.’ He is right.
Had Ashers refused to serve Lee because he was gay, or because of his support for same-sex marriage, then I can see why it would be guilty of discrimination. But it did not. It declined to decorate a cake with a particular message.
Ashers discriminated not against an individual but against a specific political demand. To compel an individual or business not to discriminate between political demands has, as Tatchell points out, ‘dangerous implications’: ‘A Jewish publisher could be obliged to print a book that propagates Holocaust denial. Likewise, Muslim publishers could be legally pressured, against their will, to print the Danish cartoons of Muhammad that Muslims find deeply offensive.’
The irony is that when it comes to Holocaust denial or cartoons about Muhammad, people are more likely to be censored for expressing their beliefs than compelled to do so. In many European countries, Holocaust denial is a criminal offence. And while the Muhammad cartoons are not banned by law, few newspapers or magazines wish to cause offence by publishing them.
The authorities, both in Northern Ireland and in the rest of the UK, have long attempted to censor religious material regarded as offensive. In 2015, a Christian pastor from Belfast was prosecuted for ‘hate speech’ for a sermon in which he claimed that Islam was ‘satanic’. He was eventually acquitted, but the case should not have come to court at all. Other Christians prosecuted for preaching hatred include Michael Overd, convicted at Bristol crown court of quoting homophobic passages from the Bible, and Shawn Holes, fined for preaching on the streets of Glasgow that gays deserved the ‘wrath of God’.
Not that Christians themselves are slow to censor. In 2014, the Reduced Shakespeare Company’s play The Bible: The Complete Word of God (Abridged) was pulled from a Northern Ireland theatre after complaints from Democratic Unionist politicians. ‘The Bible is the infallible word of God and it’s not something to be made fun of,’ claimed DUP councillor Billy Ball.
The law is in a muddle when it comes to questions of free speech, religious freedom and discrimination. It seems to require people to facilitate views with which they disagree but deny others the right to express their beliefs.
Everyone should have an expectation of equal treatment in services offered to the public, even if those providing the service disagree with such equal treatment. An atheist pub owner does not have the right to bar Christians, however much he may loathe religion. Similarly, Christian B&B owners should not be able to turn away gays, even if they believe that homosexuality is a sin.
Equal treatment, however, is not the same as forcing someone to express particular views. All should have the right to express their beliefs, however offensive others may find them. No one should be required to promote views they find unpalatable.
A Christian pastor should be free to offend Islam (and Muslim preachers Christianity). But he cannot be forced to preach that same-sex marriage is a good. Nor should a baker be obliged to ice a message with which he fundamentally disagrees.