Ashers bakery loses Bert and Ernie ‘gay cake’ appeal

Gay rights activist Peter Tatchell describes ruling as ‘defeat for freedom of expression’

A legal dispute over a Belfast bakery's refusal to make a cake with a message supporting same-sex marriage may continue after the North's Court of Appeal ruled that the decision discriminated against a gay rights activist.

The McArthur family, which runs Asher’s Baking Company, said they would meet their lawyers to decide whether a further appeal against the ruling yesterday in the so-called “gay cake” case was possible.

The court found that Ashers had discriminated against Gareth Lee on grounds of sexual orientation contrary to the Equality Act (Sexual Orientation) Regulations 2006.

The bakery appealed the decision of Belfast County Court which found it guilty of discrimination for refusing to bake a cake in 2014 with the message "Support Gay Marriage" and featuring the Sesame Street characters Bert and Ernie. It was fined £500.

The McArthurs and the British Christian Institute, which supported them, could be liable for costs that to date are estimated to be more than £150,000. The North's Equality Commission, which is supporting Mr Lee, has accrued legal costs of £88,000.

Speaking after the ruling, Mr Lee said: “The only thing I would like to say is that I am relieved but also very grateful to the Court of Appeal for the judgment, which I welcome obviously.”

‘Dangerous, authoritarian precedent’

The three appeal judges – Lord Chief Justice Sir Declan Morgan and Lord Justices Weatherup and Weir – found that a supplier may provide a "particular service to all or to none but not to a selection of customers based on prohibited grounds".

Ashers managing director Daniel McArthur said he and his family were “extremely disappointed” with the ruling .

“If equality law means people can be punished for politely refusing to support other people’s causes then equality law needs to change. This ruling undermines democratic freedom, it undermines religious freedom, and it undermines free speech,” he said.

Gay rights activist Peter Tatchell said the “verdict is a defeat for freedom of expression” and could set a “dangerous, authoritarian precedent”.

“Although I strongly disagree with Ashers’ opposition to marriage equality, in a free society neither they nor anyone else should be compelled to facilitate a political idea that they oppose,” he said.

“The judgment opens a can of worms. It means that a Muslim printer could be obliged to publish cartoons of Mohammed and a Jewish printer could be required to publish a book that propagates Holocaust denial.”

‘Deeply-held religious beliefs’

At the end of their ruling, the judges were critical of the Equality Commission, which they said had given assurances that it also was available to give advice and assistance to those “who may find themselves in difficulties as a result of their deeply-held religious beliefs”.

“The only correspondence to the appellants that we have seen, however, did not include any offer of such assistance and may have created the impression that the commission was not interested in assisting the faith community where issues of this sort arose,” they said.

Outside the court the head of the commission Dr Michael Wardlow said: "We support people whether they are with faith or without faith."

He added that the commission would examine the judgment to see “what in the view of the judges we might have done better”.

Dr Wardlow welcomed the judgment, saying it “clarifies the law”.

“It means that anyone, whether you are straight, gay, lesbian or bisexual, can walk in to receive a service without asking yourself the question, ‘I wonder do the views that I hold – religious, political views or my sexual orientation – somehow conflict with those of the people that run this organisation’.”

The Rev Dr Norman Hamilton, on behalf of the Presbyterian Church, said he was “deeply concerned by the apparent limiting of freedom of conscience and free expression, which are hallmarks of any democratic society”.