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I’m a supporter of same-sex marriage. I think marriage is a good institution – aside from the evidence of its wider social benefits, I find that being married is a great boon in my own life, and I therefore believe that other consenting adults who love each other ought to be allowed to marry. I also believe in religious freedom, even though as an atheist I’m not a believer myself – therefore, a church that wishes to marry a same-sex couple should be allowed to do so. Forbidding that voluntary, joyous act would seem to do harm to those involved, to no benefit for anyone else, just as forbidding a church to follow its practices, again with no harm to those involved or anyone else, would seem unjust and oppressive.

I’m aware this isn’t a universally held view, in the Conservative Party or in wider society, but as time goes by more people seem to be coming round to the idea that it’s ok for a couple or a church to be allowed to do something that doesn’t affect anyone else. Nigel Adams, MP for Selby and Ainsty, is only the latest to publicly change his mind on the topic – not something that is easy to admit.

Still, I recognise the right of people to disagree with me on the issue. Making something legal does not outlaw opposition to it, mercifully. Opposition to same-sex marriage will likely fade in time, but it probably won’t ever completely die out – such is human nature.

The owners of Ashers Bakery are just such people. They oppose same-sex marriage (which is still illegal in Northern Ireland, where they live and work) on the basis that their faith forbids it. If I was to walk into their shop and order a cake decorated with the words “Support Gay Marriage” on it, I expect they would refuse to make it. To do so would be on the basis of their fundamental disagreement with that message, not my sexuality – as it happens, I’m straight, but that seems unlikely to change their opposition to manufacturing an prop for a political campaign with which they disagree.

If they did refuse, I might consider a range of responses. I’d give them a harsh TripAdvisor review about their refusal to serve me, and inform friends and family about the bad experience. I might well tweet about it, and urge people to take their custom elsewere. Both would have knock-on effects on their business, as others voluntarily chose not to use it, preferring to go elsewhere to support a business more aligned with their values. Ashers would change its policy or lose out by the force of the market, while other bakers with whom I agreed would gain and prosper instead as a result.

What I wouldn’t do is sue, effectively seeking the ruling of a court to require Ashers to make a product bearing a political message which they felt conflicted with their consciences.

Gareth Lee took a different view. When he called Ashers to order just such a cake, only to later have his order turned down and his money returned, he found another bakery which supplied it with no problem. But then he chose to take the bakery to court, claiming discrimination.

He won, and he has just defeated an appeal by the bakers, on the grounds that refusing the cake on the basis of its pro-same-sex marriage message was direct discrimination on the grounds of sexuality. To quote the summary of the judgment:

‘The benefit from the message or slogan on the cake could only accrue to gay or bisexual people. The appellants would not have objected to a cake carrying the message “Support Heterosexual Marriage” or indeed “Support Marriage”. We accept that it was the use of the word “Gay” in the context of the message which prevented the order from being fulfilled. The reason that the order was cancelled was that the appellants would not provide a cake with a message supporting a right to marry for those of a particular sexual orientation. This was a case of association with the gay and bisexual community and the protected personal characteristic was the sexual orientation of that community. Accordingly this was direct discrimination.’

This seems an extraordinary claim, apparently based on the assumption that either such a message is inherently promoted by gay people (it isn’t, as I can attest) or that opposing same-sex marriage is inherently discriminatory.

As I’ve already noted, Ashers would turn down my order just as they turned down Lee’s – it would be odd for the law to deem that refusal to be a case of discrimination against me on the grounds of sexuality. Similarly, there is no suggestion that they would turn down a different order from Lee on the basis of his sexuality if it didn’t carry a message they felt conflicted with their beliefs.

On the second possible interpretation, it sets a troubling precedent if a whole political opinion is now to be deemed inherently discriminatory, and thus illegal for a private business to support it.

Same-sex marriage is a political issue, not an inherent attribute of homosexuality. You may, like me, strongly support it and view it as a civil rights question, but that doesn’t change the fact that it is a legitimate topic for debate and disagreement. Indeed, some gay people like David Coburn, the Scottish UKIP MEP, happen to oppose the legislation.

As Peter Tatchell, formerly a supporter of Lee’s case, wrote earlier this week:

‘This verdict is a defeat for freedom of expression. As well as meaning that Ashers can be legally forced to aid the promotion of same-sex marriage against their wishes, it also implies that gay bakers could be forced by law to decorate cakes with homophobic slogans. It seems the judges have decided that businesses cannot lawfully refuse a customer’s request to propagate a message, even if it is sexist, xenophobic or anti-gay and even if the business owners have a conscientious objection to it. Although I strongly disagree with Ashers’ opposition to marriage equality, in a free society neither they nor anyone else should be compelled to facilitate a political idea they oppose.’

He is surely right. Lee’s case establishes a troubling precedent. By forcing the court to decide which protected characteristic is more protected than others – sexuality or religion, in this case – the door is opening to establish a hierarchy in which some are more equal than others. Equality legislation wasn’t meant to be about a gigantic game of rock-paper-scissors, in which some who were meant to be offered protection for their beliefs, race, gender or sexuality find their protections trampled by others whose protections are deemed more worthy of protection.

Part of the problem here is in attitude. The claimant could have accorded Ashers the right to disagree with him, and campaigned against them rather than seeking legal compulsion. Instead, he seems to believe that it is somehow desirable to have a society in which people are forced to produce things for campaigns which they feel contradict their faith. That’s his choice, if a not particularly pleasant one, and arguably it has backfired by making Ashers into something of a cause célèbre.

The wider issue is more serious, in that it relates to the status of “equality” in our politics. Our laws on the topic grant various protections but fail to define how they interact with each other. There have always been concerns about what might happen if one protected characteristic came into conflict with another, but those questions tend to be shouted down in the sanctified name of equality.

Few politicians dare to get involved in a frank discussion of this nitty gritty, because the instant reply is to suggest they are endorsing “No Blacks, No Dogs, No Irish” signs at hotels and would be turfing Rosa Parks straight to the back of the bus even though they are doing no such thing. Such denunciations make debate over practical questions difficult, and law made without practicalities in mind tends to have serious consequences.

As Paul wrote in March, if there must be a hierarchy of equality then it should be debated and decided transparently and democratically in Parliament, but instead the issue has been dodged, leaving it to courts and quangos to decide. They inevitably do so chaotically, not always consistently, and after the fact, at the cost of test cases which involve people’s livelihoods. A proper discussion and decision would provide certainty up-front, on which basis people could then decide how to run their businesses – or whether to run them at all.

82 comments for: The ‘gay cake’ case highlights a fundamental problem with the politics of equality

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