Gay Cakes — A Defeat for Freedom of Expression? I Don’t Buy It.

It is Peter Tatchell’s view of freedom of expression, not the judgement of the Belfast court, which opens a can of worms.

On the 24th October 2016, the Appeal Court in Belfast ruled that a family-run bakery acted unlawfully by refusing to decorate a cake with the message “Support gay marriage”. The bakers did not wish to assist the gay marriage campaign. So did the McArthur family discriminate against the customer based on his sexuality? The question is complex and potentially baffling.

Peter Tatchell has written an excellent article (http://www.petertatchellfoundation.org/ashers-gay-cake-verdict-is-defeat-for-freedom-of-expression/) which threatens to slice neatly (no pun intended) through the confusion. Tatchell argues that there is a distinction to be drawn between discrimination against ideas and discrimination against people. The former is acceptable, and indeed must be allowed in a democratic society. The latter is wrong, and should be condemned. In the scenario at hand, the couple running the bakery “did not discriminate against the customer because he was gay. They objected to the message he wanted on the cake: ‘Support gay marriage.’ ”

The presumption, I take it, is (a) that the couple would have been happy to make the same customer a different cake and (b) that they wouldn’t have made any customer the cake that this customer, Gareth Lee, requested. This allows Tatchell to argue that the judges got it wrong when they held that Lee was discriminated against. This was discrimination against an idea, not a person.

Now, I don’t know whether the judges got it wrong. For one thing I don’t know what the law is. But what I do think is that Tatchell’s argument, whilst pretty, has got something wrong with it.

Tatchell decries the judgement of the Appeal Court as a “defeat for freedom of expression”. He believes that it should be no job of the law to force businesses to aid the dissemination of “political messages” that they disagree with. But in one striking way at least, the judgement was a clear-cut victory for freedom of expression. It was Gareth Lee who wished to exercise his freedom of expression by getting the slogan printed on the cake and who was thwarted by Ashers, the bakery.

Of course, Tatchell is concerned that the freedom of expression of the bakers is infringed by the court’s judgement. But here I really struggle with his view. The Ashers case is quite clearly not about banning certain opinions. The McArthur family, who run Ashers, are of course absolutely free to campaign vigorously against marriage equality. They can write and say whatever they like on the issue, they can lobby politicians, they can hold rallies. And it is the freedom to do these things which is so fundamental and important in a democratic society. You should, I think, be able to express just about any opinion whatsoever, without fear of legal reprisal. However, the thing is, the gay cake case doesn’t concern these freedoms at all.

Instead, it concerns the issue of whether a gay person (because let’s face it, if you want “Support gay marriage” on your cake, you’re probably going to be gay) can go into a bakery which advertises that it will decorate a cake with any message the customer desires, and get a cake with the message they want. Of course the McArthurs are entitled to express their political views, but they also run a business which has a legal duty to treat members of the public equally.

The McArthurs were not being asked to conduct a gay marriage ceremony.

Tatchell tries to draw a sharp distinction between the Ashers case and the case of the B&B owners who refused service to gay civil partners. He admits that the B&B owners were “clearly” in the wrong.

But suppose for argument’s sake that Tatchell is right that freedom of expression extends so far as to allow Ashers to refuse to make Gareth Lee’s cake. Why does it not then extend so far as to allow Christian B&B owners to refuse to let a gay couple share a double room, on the grounds that the owners should not be forced to “facilitate” (potentially) the supposed sin of gay sex?

Surely if you are that strongly opposed to gay marriage or gay sex, being asked to perhaps allow gay sex to actually take place on your premises is an even more severe violation of your freedom and integrity as someone with deeply held beliefs than being asked to put a message on a cake (when you are in the business of making cakes with messages on them). The McArthurs were not being asked to conduct a gay marriage ceremony. And so if it really should be no comfort to the McArthurs in the face of this judgement to be reminded that they can express whatever political opinions they like, how should it be comfort to the B&B owners who are potentially being asked to allow on their premises the very activity that they so strongly condemn? And what if the B&B owners argued that they weren’t discriminating on the grounds of sexuality, because they would happily serve the civil partners, they just couldn’t allow them a double room together?

If it really is true that freedom of expression is undermined if, as a baker, you have to make a cake with a slogan expressing a view with which you disagree, then how can it not also be undermined if, as a B&B owner, you have to facilitate the actual practice which you exercise your free speech to rail against?

It is notoriously difficult to say exactly what freedom of expression amounts to. But the starting point is presumably that you should, quite simply, be allowed to say what you like. Both the bakers and the B&B owners are able to do this. And so, I can’t accept the idea that this judgement is a morally significant infringement of the bakers’ freedom - not unless the B&B owners were within their rights all along.

The second thread of Tatchell’s argument concerns his fear that the judgement sets a “dangerous, authoritarian precedent”. Tatchell worries that businesses will now be forced to print any lawful message. For example, a Jewish printer might be forced to propagate holocaust denial. This point deserves attention. I am prepared to believe that there might be a worrying precedent here as a matter of law (as I say, I am no expert on the law), given that Northern Ireland has laws prohibiting discrimination on the ground of political opinion. However, I still don’t see how there is an issue here insofar as Tatchell is arguing about what the law should do.

Plausibly, the Ashers case involves discrimination against what the Equality Act 2010 (which does not apply in Northern Ireland) calls “protected characteristics”. There are nine of these: age, disability, gender reassignment, marriage and civil partnership, pregnancy and maternity, race, religion, sex and sexual orientation. And so, whilst being gay is a protected characteristic, being a holocaust denier is not. If we believe the law should protect people from discrimination against these protected characteristics, I see no reason why this case should set a dangerous precedent at all. Now if it does set such a precedent as a matter of fact and law in Northern Ireland, then that is indeed a shame, and it might indeed be worrying. But it doesn’t mean Gareth Lee was not discriminated against.

Tatchell might revert at this stage to his point that Mr Lee was asking Ashers to print a “political message”. I wonder if this claim would seem so plausible if the incident had occurred in one of the many territories (including, of course, the rest of the United Kingdom) where there is no longer a distinction in law between heterosexual and homosexual marriage. Would it be an equally “political” act to ask for a cake to be made which depicted and supported the idea of interracial marriage?

If we really are so keen on stressing the political nature of Gareth Lee’s request, then I am inclined to say that we might - when it comes to deciding what Ashers should be required to print - have to judge the content of the political opinion in question. If this sounds scary and “authoritarian”, don’t panic. Remember, we are absolutely not in the game of banning political opinions. In my view, holocaust denial should be legal. But that doesn’t stop it being a simply ridiculous claim. The claim that gay people should be allowed to marry is not a ridiculous claim. It is common sense.