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6 September 2019updated 08 Sep 2021 1:37pm

It may seem like intolerance has won, but the “gay cake” judgement protects vital freedoms

Refusing to carry a political message is not the same as discrimination. 

By Louis Staples

Between Brexit and Trump, the impending climate disaster and that couple kissing on Strictly Come Dancing, it is certainly surprising to see cake leading the news agenda once more.

But Wednesday’s unanimous ruling at the UK Supreme Court, which stated that a Northern Irish bakery’s refusal to make a cake with a slogan supporting same-sex marriage was not discriminatory, is both legally significant and fiercely emotive.

The much-publicised case began in 2014 when Ashers bakery reportedly refused to make a cake with the slogan “Support Gay Marriage”. LGBT+ rights activist Gareth Lee, who ordered the cake, sued the company for discrimination on the grounds of political beliefs and sexual orientation. After losing the case and appeal, the bakery finally won its appeal at the Supreme Court.

Following a similar case in America, which had the same outcome, this case is obviously about far more than just a cake. It raises key questions about competing rights and freedoms, such as free speech and religious and political expression. It also makes a key distinction between refusing service to a specific person and refusing to associate with a particular message.

I have deep sympathy for Lee, who says that the ruling makes him feel like “less of a person”. As a gay man, I can imagine how humiliating and illegitimising it must feel to be refused service for requesting a cake that supports your basic human rights. Northern Ireland remains the only part of the UK where same-sex marriage is not legal – an appalling situation that should be the real news.

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I have interviewed and spoken to many Northern Irish LGBT+ people, many of whom have described an environment of systemic homophobia that runs through church, school and leading political parties. Of course, this is not representative of everyone in Northern Ireland, but to those struggling with their identities in already hostile surroundings, this ruling will probably feel like yet another indication that they do not matter.

I disagree with Ashers bakery’s views. They use Christianity as a justification, but Jesus never once condemned homosexuality and I know many pro-gay Christians. Yet despite my view that their religious justifications are wrong, nonsensical and that they probably should have just made the cake, I do agree with today’s Supreme Court ruling.

Ashers did not discriminate against Lee because he is gay. They refused to make a cake bearing a political message that they disagree with. There is no evidence to say that his sexuality influenced their refusal and it is likely that, whatever the customer’s sexual orientation, they would have still refused to make this particular cake.

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The cake in question specifically referenced support for same-sex marriage. If the bakery had refused to make a cake that simply said “congratulations Adam and Steve”, accompanied by love hearts, then this ruling would likely have been different.

If the original ruling had stood, then service providers would have been required to facilitate any “lawful” message, whatever their personal views. Could this potentially mean gay bakers having to make cakes with anti-gay political messages on them, like “bring back Section 28”? Or bakers being forced to make cakes supporting Marine Le Pen, Donald Trump or Tommy Robinson? Would a black baker have to ice a pro-colonialism cake? Or a Polish bakery, like the one near me in Hackney, be forced to make an anti-immigrant cake? Must a pro-choice feminist decorate an anti-abortion cake? However unlikely, this ruling avoids these instances.

Following today’s ruling, a Muslim baker would likely not be forced to make a “Free Tommy Robinson” cake, but would probably still have to serve Robinson if he came into their bakery to order a princess cake for his daughter. That feels about right to me.

My one worry is that this judgement could be interpreted wrongly by customers and business owners, emboldening bigots and discouraging people from reporting perfectly valid instances of personal discrimination.

While it may seem as though backward thinking and intolerance have won the day, the “gay cake” judgement enshrines freedoms that we all benefit from. Moral wrongdoing does not, in my view, equate to illegality in this case. Discrimination against people should be unlawful, but our individual right to reject ideas that we disagree with must be protected.