“I Just Don’t Understand”. Why the “Gay Cake” Case was always about more than Cake

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About 4 years ago Gay Rights activist Gareth Lee walked into Ashers bakers who specialised in making bespoke cakes and asked them to produce this cake:

His order was taken and began to be processed in the normal way until the manager-owners, committed Christians, decided they were unable in good conscience to produce the cake because of the message on it. So 2 days later Mr Lee had his money fully refunded.

And there was another baker down the road who would gladly bake his cake (as pictured above).

And that’s the end of the story.

But no. Mr Lee then of his own volition decided it wasn’t enough for Ashers to not get his money because of a matter of conscience; he decided to take them to court. Perhaps if Ashers had simply stated that they were unwilling to be part of the clear copyright infringement of using the image of Bert and Ernie the whole thing would have stopped there. But they at least had the integrity to tell Mr Lee exactly why they felt unable to complete his order.

Besides, there was another baker down the road who would gladly bake his cake.

4 years later the case ended up in the UK Supreme Court who ruled 5-0 (yes, unanimously) that he was not discriminated against because of his sexuality or anything else and that the bakers had a clear freedom not to be compelled to act in a way contrary to conscience. Here’s the full ruling (well worth the 8 or so minutes because of the clarity on the key issues).

Now that’s pretty clear cut, I would have thought. But no, apparently not. The Belfast Telegraph posted initial statements from the parties involved and they’re fascinating. In particular, Mr Lee…

Lee’s words are interesting:

This was never a campaign…

Except it was. He didn’t walk into the bakery intent on making a point but when his order was politely rejected (and he had had the cake made somewhere else) he did launch into a campaign and with the help of the “Human Rights Commission” pursued that campaign on and on.

Long after he’d been to see another baker down the road who would gladly bake his cake.

Next he runs out the well-used trope

…I’m a second-class citizen … we don’t have the same rights…

In what way exactly? He was able to walk down the street and get the cake made somewhere else. That right wasn’t taken away. It’s not like every bakery refused him entry because of the pink triangle he was forced to wear by the oppressive theocracy. But what he did want to do is deny the right of someone else to act according to conscience. In fact, it was more than that. He wanted to compel someone else to act against conscience.

If we want to throw rhetoric around then let’s call that for what it is. When you compel me to do something I don’t want to do, that’s slavery. I’m not even a second-class citizen at that point.

But Lee would have the Ashers forced to violate their conscience, even when there was another baker down the road who would gladly bake his cake.

But the best is towards the end. His lawyer tries to get in a more sensible comment but Lee is emoting now. It’s interesting to watch as the heckles get up…

…I’m confused at the moment about what this actually means … for everyone”

But there’s no need for confusion. The Supreme Court spoke very clearly (see also Neil Foster’s excellent analysis of the ruling).

35 … It is deeply humiliating, and an affront to human dignity, to deny someone a service because of that person’s race, gender, disability, sexual orientation or any of the other protected personal characteristics. But that is not what happened in this case and it does the project of equal treatment no favours to seek to extend it beyond its proper scope.

47. It may well be that the answer to this question is the same as the answer to the claim based on sexual orientation. There was no less favourable treatment on this ground because anyone else would have been treated in the same way. The objection was not to Mr Lee because he, or anyone with whom he associated, held a political opinion supporting gay marriage. The objection was to being required to promote the message on the cake. The less favourable treatment was afforded to the message not to the man. It was not as if he were being refused a job, or accommodation, or baked goods in general, because of his political opinion, as for example, was alleged to have happened in Ryder v Northern Ireland Policing Board. The evidence was that they were quite prepared to serve him in other ways. The situation is not comparable to people being refused jobs, accommodation or business simply because of their religious faith. It is more akin to a Christian printing business being required to print leaflets promoting an atheist message.

50. Furthermore, obliging a person to manifest a belief which he does not hold has been held to be a limitation on his article 9(1) rights.

Which is all very straightforward. The Court is essentially arguing that to force the Ashers to make this cake would actually have been to contravene their rights.

Or, in other words, Lee really didn’t have to insist that they made his cake for him when there was another baker down the road who would gladly bake his cake.

And that’s really the key underlying issue here. It isn’t enough for Lee and other activists like him that there are now plenty of bakers around who are happy to bake his cake with whatever message he wants on it. He wants to force those who don’t agree with him to do it as well and he can’t understand why they won’t.

But it’s not really a lack of understanding. It’s a lack of empathy and an unwillingness to seek to understand. A number of years ago I was involved in a TV programme discussing this topic. I attended the wedding overseas of 2 gay men and I can remember vividly one conversation with somebody at that wedding. They weren’t stupid. They ran a well-respected not-for-profit and had been recognised in a national award for their work. And yet their first words to me were, “I just can’t understand why you object to this…” to which my answer was, “and that’s the real problem with this debate, because if you can’t even understand my position then it shows that you don’t want to, because it’s not difficult to understand.” She had no desire to understand, in her world (as, it appears, in the world of Mr Lee) there was no possible reason why anyone would think any other way.

That’s the real problem here. The Supreme Court thought differently. They were actually abundantly clear and not hard to understand at all:

There was another baker down the road who would gladly bake his cake.


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This Post Has 4 Comments

  1. Stephen Bond

    beautifully argued David, by both you and The Supreme Court. I am also impressed that you could cite the names of ‘Bert’ and’ Ernie’ – that was just the icing on the cake! Keep it up. Cheers from Stephen

  2. MichaelA

    A concise and clear exposition of the issues by Baroness Hale.

    Christians should be thankful for the Attorney General of Northern Ireland. Without his intervention, the (clearly erroneous) decision of the Court of Appeal would have stood.

    And also be thankful for Article 9 of the European Declaration on Human Rights, which played such a major role in the thinking of the UK Supreme Court:

    “1. Everyone has the right to freedom of thought, conscience
    and religion; this right includes freedom to change his religion or
    belief and freedom, either alone or in community with others and
    in public or private, to manifest his religion or belief, in worship,
    teaching, practice and observance

    Freedom to manifest one’s religion or beliefs shall be
    subject only to such limitations as are prescribed by law and are
    necessary in a democratic society in the interests of public safety,
    for the protection of public order, health or morals, or for the
    protection of the rights and freedoms of others”

  3. Tony Camilleri

    The presence of any other baker down the road is besides the point. If the bakery denied the claimant service because of their sexuality then the willingness of another baker down the road to serve them is no protection. They would still be foul of the law.
    The successful defence rests on how the denial was for a particular service or message but not the customer themself.

  4. Chris russell

    David has hit the right nail exactly on its head. The willingness of another baker down the road is precisely the point. It shows that what the plaintiff wanted was to require the baker to act in conflict with his religious values, rather than to get his cake baked. The point is not what the legal defence turned on: this is not a lawyer’s website. What remains noteworthy is the threat to religious freedom. Having said that, I would count this comparatively little in the way of persecution by the world.

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