The Christian owners of a Northern Irish bakery who refused to make a cake with a pro-gay marriage message were not being forced to do anything against their beliefs, an Equality Commission lawyer has said.
Robin Allen QC said many businesses printed messages they did not associate with, citing the example of posters made by candidates fighting last week's Assembly election, and said the Ashers Baking Company in Belfast could decide whether or not to include its logo on its products.
The McArthur family, who run Ashers, are seeking to overturn a court judgment which found they acted unlawfully by declining the order placed by LGBT activist Gareth Lee in 2014 based on their religious conviction that the slogan was sinful.
Attorney general John Larkin QC has been granted permission to take part after arguing that sexual orientation regulations in Northern Ireland discriminate against those like the McArthurs who hold religious or political beliefs.
Mr Allen, for the commission, said: “Mr Lee was not asking them to promote anything and in the offering themselves they did not consider themselves to be promoting when they had the icing done on the cake.”
He told Belfast’s Court of Appeal a flier advertising the service and the fashion in which the order was taken was evidence that it was not a forced act.
“It is no more forced speech than any of the delivery merchants or the post office or any of the companies that printed the numerous hoardings around Belfast and the rest of Northern Ireland for the Assembly elections this week.”
The terms and conditions imposed by Ashers did rule out pornographic or blasphemous messages and one of the judges hearing the appeal, Lord Justice Reg Weir, questioned whether the McArthur family may have interpreted the phrase Support Gay Marriage as blasphemy.
The issue has not been raised by counsel for Ashers.
Ashers’ owners were ordered to pay £500 damages after a county court judge ruled they directly discriminated against Mr Lee in refusing to make him a cake featuring Sesame Street puppets Bert and Ernie with the phrase Support Gay Marriage for a private function marking International Day Against Homophobia two years ago.
Mr Larkin said the argument centred on expression.
“I say very clearly, if it was a case where Mr Lee had been refused some of Ashers’ excellent chocolate eclairs because he was gay or perceived to be gay, I would be standing on the other side of the court.
‘It’s about expression’
“But it’s not about that, it’s about expression and whether it’s lawful under Northern Ireland constitutional law for Ashers to be forced ... to articulate or express or say a political message which is at variance with their political views and in particular their religious views.”
He claimed part of the original judgment was wrong.
“It is clear the county court judge has given a greater legal value to the right to express a view supportive of gay marriage than the defendant’s wish not to be compelled to express that sentiment and that is simply a failure (involving constitutional law).”
Mr Lee, a member of the LGBT advocacy group Queer Space, paid the £36.50 in full for the cake at Ashers' Belfast city centre branch, but received a phone call two days later and was told the company could not fulfil his order.
Mr Larkin claimed Ashers were the parties to the case who had been directly discriminated against.
“The direct discrimination is the requirement on pain of civil liability, either under the Northern Ireland regulations or the 1998 Order, to articulate a view, express a view which is hostile to one’s own political or religious views.”