The great Belfast bake-off: Asher’s ‘gay cake’ decision

Less prosecutorial zeal may be the easiest way to address such issues

 

The case of Asher’s Baking Company and the £36.50 cake – costs now running to some £180,000 – has something of the humorist AP Herbert about it. Herbert’s fictional Misleading Cases played hilariously with the absurdities of the law, most famously over the legal standing of a cheque written to the Inland Revenue on the side of a cow “of malevolent aspect”; usually, however, to make an important point.

And behind what some will see as the comical circumstances of the “gay cake” legal dispute between Asher’s and customer Gareth Lee – over his wish to decorate it with “Support Gay Marriage” – there are indeed important legal and civil rights issues. In essence, when rights conflict which trumps the other? Which should prevail when the right to freedom of speech and religion conflicts with that of a citizen not to be discriminated against on grounds of sexual orientation? Although, in this case many may not see the erosion of either right as particularly oppressive.

Moreover, any fair reading of the Equality Act (Sexual Orientation) Regulations 2006 would support the three appeal judges’ contention that the lower court ruling against Asher’s conformed to the law. The Act’s fairness is another matter. Its purpose and the meaning of its text are clear, as Northern Ireland’s Lord Chief Justice Sir Declan Morgan and Lord Justices Weatherup and Weir found, in that “as a matter of law” a supplier may provide a “particular service to all or to none but not to a selection of customers based on prohibited grounds”. To conform, if Asher’s wants to stay in the wedding cake business, it will not be able to offer customised cakes, only a standard range, however elaborate.

The Act provides exceptions for organisations that are wholly religious in character, or where the sole purpose of the “unlawful action” is to practise a religion or belief and, as the explanatory memo puts it, “it does not ... extend the exception to organisations whose sole or main purpose is commercial”. A bakery does not qualify.

Should the Act now be amended to elaborate a conscience-exception clause, as even some marriage equality supporters now demand? In principle, yes, but it would be no mean legislative drafting task to draw a line without over-diluting the essential protection from discrimination provisions. To protect the right of an Islamic printer to refuse to print cartoons of the Prophet would be a worthy objective. But what about a hotelier who does not want to let rooms to gay couples?

Nor did the court accept the Asher’s supposed dilemma that providing the cake would require them to back gay marriage. As the chief justice argued, “the fact that a baker provides a cake for a particular team or portrays witches on a Halloween cake does not indicate any support for either”. Perhaps the easiest way to address the issue is with a little less prosecutorial zeal.