In a guest post, Dr Michael Arnheim, Barrister at Law and Sometime Fellow of St John’s College, Cambridge, offers another view of Lee v McArthur & Ors  NICA 29 and the forthcoming appeal.
What is the point of yet another article on the “Gay Wedding Cake” saga? Just this, that, having lost in two courts already, the Christian bakery owners are about to receive a final knock-out blow in the UK Supreme Court – unless their lawyers take off their gloves and go for the jugular. Up to now, their lawyers have fought their corner in a quiet, gentlemanly way – on their adversaries’ terms. It is time to challenge the whole very shaky basis of the judgment of the Court of Appeal in Northern Ireland.
The basic facts of the case are simple enough. A Belfast bakery owned by a Christian couple refused an order to make a cake bearing the slogan “Support Gay Marriage”, as the bakery owners believe that same-sex marriage is sinful. In addition, same-sex marriage was not and is still not legal in Northern Ireland. The prospective customer got his cake made by another bakery but took the Christian bakers to court and won. The County Court held that the Christian bakers had discriminated against the prospective customer “directly on grounds of sexual orientation” and “directly on grounds of religious belief or political opinion”: Lee v Ashers Baking Co. Ltd  NICty 2. This decision was upheld by the Court of Appeal in Northern Ireland: Gareth Lee v Colin McArthur, Karen McArthur and Ashers Baking Company Ltd  NICA 29. The case is now due to be heard by the UK Supreme Court in May 2018
Some crucial points
Here is a list of crucial points which will need to be brought home with some force by the Christian bakers’ lawyers if they are to stand any chance of winning:
- Though touted as a case about “equal rights”, it is actually about privilege.
- The whole approach adopted by both Northern Ireland courts to “comparators” in regard to discrimination is fatally flawed.
- The illogicality of the Court of Appeal judgment.
- Breach of Articles 9 and 10 of the European Convention on Human Rights.
- The dubious legality of the 2006 Regulations.
Both Northern Ireland court judgments against the Christian bakers were based primarily on the Equality Act (Sexual Orientation) Regulations (NI) 2006 (“the 2006 Regulations”) and on the Fair Employment and Treatment (NI) Order 1998. The relevant provisions of both these instruments prohibit discrimination on grounds of sexual orientation. In other words, they are concerned to guarantee equal treatment for people regardless of their sexual orientation.
In fact, however, far from upholding equal treatment the two court judgments do exactly the opposite and champion a “politically correct” form of privilege. According to the two court decisions, the Christian bakers were obliged to make a cake proclaiming “Support Gay Marriage”, effectively enhancing the prospective customer’s right to freedom of speech while suppressing the bakers’ own right to freedom of speech together with their right to freedom of religion as well as their right as a business to accept or reject any order. In other words, the rights of the prospective customer, Gareth Lee, were held by the courts to trump the rights of the Christian bakers. That is not equal treatment but its opposite, special privilege, accorded to Gareth Lee.
Wrong approach to “comparators”
A key concept in the law relating to discrimination is that of a “comparator”. The concept is well illustrated by the UK Supreme Court case of Bull v Hall  UKSC 73, on which a great deal of reliance was placed by the courts in the present case. In Bull v Hall a gay civil partnership couple was refused accommodation in a double room by Christian hotelkeepers. The hotel would have had no objection to booking a heterosexual married couple into a double room. So, as the hotel treated the gay couple less favourably than they would have treated a heterosexual married couple, this was held to amount to direct discrimination against the gay couple – with a straight married couple as the “comparator”.
There was much discussion in the present case about the appropriate “comparator”, which the Court of Appeal identified as “a cake carrying the message ‘Support Heterosexual Marriage’ or indeed ‘Support Marriage’.” But a much better candidate for the title of “comparator” would surely be the Christian bakers themselves. Should the Christian bakers have treated themselves less favourably than they treated a prospective customer? That is what the court decisions required them to do – obliging them to disadvantage themselves by publishing (on a cake) a message to which they took strong exception on religious grounds. This is very different from Bull v Hall. The equivalent in that case would have been if the Christian hoteliers had been held to be obliged to give up their own bedroom to the gay couple. Recognising that the true “comparators” in the present case are the Christian bakers themselves is crucial. Unfortunately, the bakers’ lawyers did not make this point.
Would baking a cake with the slogan “Support Gay Marriage” amount to the bakers’ approving, promoting or supporting gay marriage? The courts wrongly rejected this proposition. The Court of Appeal judgment went so far as to say: “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.” This is a textbook example of an argument by false analogy – a classic case of illogicality. Hallowe’en, a contraction of “All Hallows Eve”, may well at one time have had religious connotations, but it is now a purely fun celebration associated more with fancy dress, pumpkins and “trick-or-treat”. Nobody would take a Hallowe’en cake to be an inducement to adopt any particular belief, and the same applies to a cake for a sports team. The word “support” would be absent from such cakes anyway. But it was crucial to the cake ordered by Gareth Lee. “Support Gay Marriage” is a political slogan advocating a change in the law at a time when gay marriage was (as it still is) illegal in Northern Ireland. Instead of the false analogies suggested by the court, a genuine analogy to “Support Gay Marriage” would be “Support the Legalisation of Cocaine”.
European Convention on Human Rights
The Northern Ireland courts gave short shrift to the argument that obliging the Christian bakers to make the cake ordered by Gareth Lee would infringe the bakers’ rights under Articles 9 and 10 ECHR.
Article 10 declares: “Everyone has the right to freedom of expression. This right shall include freedom to hold opinions and to receive and impart information and ideas without interference by public authority and regardless of frontiers.” It is, I believe, self-evident that a requirement to advertise the slogan “Support Gay Marriage” amounts to forced speech and to a negation of the bakers’ right to refuse to promote this change in the law. Wooley v Maynard (1977), a US Supreme Court decision, is a case in point. George Maynard, a Jehovah’s Witness living in New Hampshire, successfully objected to having to display the state motto, “Live Free or Die”, on his motor car number plate. “The slogan”, explained George Maynard, “is directly at odds with my deeply held religious convictions…..I also disagree with the motto on political grounds.” The motto was a standard feature of number plates in that state and state legislation made it obligatory to affix such number plates to all motor cars. The Supreme Court held the state law in question unconstitutional because, in the words of Chief Justice Warren Burger, it effectively required individuals to “use their private property as a ‘mobile billboard’ for the State’s ideological message.” The slogan on a custom-made cake would be far more closely identified with the bakery that produced it than the motto on a mass-produced number plate attached to every car in New Hampshire would be identified with any particular resident of that state.
Wooley v Maynard combined a religious objection to one based on freedom of speech. And the same applies in the gay wedding cake case. ECHR Article 9 guarantees “Freedom of thought, conscience and religion” and specifically protects everyone’s right “to manifest his religion or belief, in worship, teaching, practice and observance.” Obliging Christian bakers to make a cake enjoining “Support Gay Marriage” infringes their Article 9 rights by effectively making them manifest a belief which they reject as sinful and wrong.
Dubious legality of the 2006 Regulations
Despite the heavy reliance by both Northern Ireland courts on the Equality Act (Sexual Orientation) Regulations (NI) 2006, the legality of those Regulations is uncertain. The Regulations were made under section 82 of the Equality Act 2006 and were subject to the affirmative resolution procedure of the Northern Ireland Assembly. However, the Northern Ireland Assembly was suspended at that time. So the Regulations were laid before Parliament instead and came into force subject only to a negative resolution. This was pointed out in the Court of Appeal judgment, but, amazingly, was not known, or at least not noticed, by the County Court judge. However, this important defect did not make the Court of Appeal any the less reliant on the Regulations. The difference between an affirmative and a negative resolution is quite significant. The negative resolution procedure allows the instrument in question to become law automatically without debate unless an objection is raised, whereas the affirmative procedure requires proper consideration of the regulation or other statutory instrument concerned. So these Regulations were not debated in Parliament – which was not the body by which they were meant to be adopted in any event.
Will the Christian bakers finally win their case in the UK Supreme Court, as they deserve to do? Judging by that court’s track record, it is probably unlikely. However, I believe that the arguments adumbrated in this article, if used in conjunction with the ones advanced by the bakers previously, will give them their only hope of success.