On 2 May, Daniel and Amy McArthur faced the cameras massed outside court for the third time in four years.
The Supreme Court, the highest court in the land, had come over to Belfast for the first time ever to hear their appeal. The County Court and Appeal Court had both ruled it was wrong of Ashers Baking Co. to refuse an order for a cake promoting gay marriage.
The issue at stake is massive. Should the state compel someone to endorse a message with which they fundamentally disagree?
The message not the customer
In 2014, a gay activist, Gareth Lee, asked Ashers to produce a campaign cake with the slogan ‘Support Gay Marriage’ and the logo of his local LGBT group. Northern Ireland is the only part of the UK where same-sex marriage is illegal. Ashers is a family business run by Christians, and they politely explained that they could not fulfil this request. Daniel McArthur, the Ashers general manager, has said repeatedly that their problem was the message, not the customer. If his own grandma had put in that particular order, it would have been refused!
Mr Lee accepted a full refund. Another bakery produced the desired cake in time for the event. That should have been the end of it.
Hurt feelings
It wasn’t. While Gareth Lee accepted that he had been treated with courtesy, he still claimed that his feelings had been hurt. The taxpayer-funded Equality Commission for Northern Ireland swung behind him. They demanded that Ashers pay Mr Lee compensation for hurt feelings (and thereby accept that they should have endorsed his cause). The McArthurs could not in conscience concede this, and they were taken to court. A local judge found them guilty of discrimination and ordered them to pay £500 in damages.
Two years later, judges at the Appeal Court accepted that the McArthurs had not cancelled the order because of Mr Lee’s sexual orientation (and so could not have discriminated against him personally). But they upheld the judgment.
First, they ruled that sexual orientation discrimination still applied because the ‘Support Gay Marriage’ slogan was ‘associated with the gay and bisexual community’.
Second, laws designed to protect freedom of religion were turned upside down, as the judges said that in exercising their own religious conscience, the family had disadvantaged Mr Lee.
Speech under compulsion
Third, a law designed to protect Nationalists and Unionists in Northern Ireland from wrongful discrimination was bizarrely applied, and the McArthurs were told that they were not allowed to ‘discriminate against a political opinion’ with which they disagreed. It seemed that the law itself was being hijacked to promote the cause of gay marriage, and to ‘punish’ anyone who would not endorse it. The law was being used to compel speech. That is why commentators on all sides have voiced outrage.
Peter Tatchell, veteran gay rights campaigner says: ‘In a free society ‘neither they [Ashers], nor anyone else, should be required by law to promote an idea they object to …The equality laws invoked here are intended to protect people – not ideas – against discrimination.’
Jeffrey Dudgeon has led the charge for gay rights in Northern Ireland for decades, but he opposes the Equality Commission’s hounding of Ashers, and says that Northern Ireland political discrimination law has been ‘twisted around’ in this case. And Northern Ireland columnist and vocal gay marriage supporter, Fionola Meredith asks: ‘When will this warped, totalitarian fairy tale end? No company should be under any obligation to facilitate the dissemination of beliefs that are antithetical to the ethos of that business.’
These, and many others, recognise that the law should protect liberty of conscience. It should not be used to compel people to endorse a particular political or social campaign. As Daniel McArthur explained outside court: ‘The Equality Commission has pushed for an interpretation of the law which extinguishes conscience.’
The most senior lawyer in Northern Ireland, Attorney General John Larkin QC agrees. He believes that the rights of the McArthurs have been violated. The Equality Commission has tried to force them to support a political and religious view which they fundamentally oppose. In doing so, it has ignored the Article 9 and 10 rights that all British citizens possess: freedom of thought, conscience, religion and expression.
Mr Larkin told the five Supreme Court judges: ‘No [legal] authority lends the least comfort to impelled expression of political belief – especially when there are theological overtones.’ He went on to ask if the judges would not be outraged if a Catalan was forced to shout ‘Long live the King [of Spain]’.
Dictatorial power
As he did so, I was reminded of my years as a volunteer teacher in Malawi in the early 1980s, where the Life President, His Excellency Hastings Kamuzu Banda exercised absolute power. Adulation from his citizens was compulsory. When he visited rural villages, there was ‘spontaneous’ rejoicing. Women would surround him, singing and dancing, all wearing dresses emblazoned with his smiling face. Meanwhile, the Young Pioneers were going around, home to home, making sure that all had turned out. It was a lesson in ‘enforced speech’ that I have never forgotten.
Fast forward to Belfast in 2018. Can the State force citizens to express views with which they profoundly disagree?
That is the question to be decided. ‘Give us time’, asked Lady Hale as the two days of court proceedings closed. The judgment may not be passed down for some months. When it comes, it will have huge significance for freedom of expression across the UK and beyond. Not just for Christians. For everyone.
