After refusing to bake a cake that said, “Support gay marriage,” a couple in Northern Ireland was convicted of political and sexual orientation discrimination. Now LGBT activist Peter Tatchell is publicly disagreeing with the court’s decision, saying, “Much as I wish to defend the gay community, I also want to defend freedom of conscience, expression and religion.”
[T]he court erred by ruling that Lee was discriminated against because of his sexual orientation and political opinions.
His cake request was refused not because he was gay, but because of the message he asked for. There is no evidence that his sexuality was the reason Ashers declined his order. Despite this, Judge Isobel Brownlie said that refusing the pro-gay marriage slogan was unlawful indirect sexual orientation discrimination. On the question of political discrimination, the judge said Ashers had denied Lee service based on his request for a message supporting same-sex marriage. She noted: “If the plaintiff had ordered a cake with the words ‘support marriage’ or ‘support heterosexual marriage’ I have no doubt that such a cake would have been provided.” Brownlie thus concluded that by refusing to provide a cake with a pro-gay marriage wording Ashers had treated him less favourably, contrary to the law.
This finding of political discrimination against Lee sets a worrying precedent. Northern Ireland’s laws against discrimination on the grounds of political opinion were framed in the context of decades of conflict. They were designed to heal the sectarian divide by preventing the denial of jobs, housing and services to people because of their politics. There was never an intention that this law should compel people to promote political ideas with which they disagreed.
The judge concluded that service providers are required to facilitate any “lawful” message, even if they have a conscientious objection. This raises the question: should Muslim printers be obliged to publish cartoons of Mohammed? Or Jewish ones publish the words of a Holocaust denier? Or gay bakers accept orders for cakes with homophobic slurs? If the Ashers verdict stands it could, for example, encourage far-right extremists to demand that bakeries and other service providers facilitate the promotion of anti-migrant and anti-Muslim opinions. It would leave businesses unable to refuse to decorate cakes or print posters with bigoted messages.
In my view, it is an infringement of freedom to require businesses to aid the promotion of ideas to which they conscientiously object. Discrimination against people should be unlawful, but not against ideas.
Tatchell gets it. He didn’t just reflexively cheer the punishment of his political opponents; he recognized the principle behind the ruling (a denial of freedom of conscience), considered what the result would be if the same principle were to be applied to everyone (including his political friends), saw that it was an unjust infringement of a natural right, and realized the whole society is better off when we protect everyone’s political and religious freedom of conscience. He put principle and natural rights above agenda, and I find that very encouraging.