The defendants are not a religious organisation; they are conduction a business for profit notwithstanding their genuine religious beliefs and in accordance with Regulations 16(2) are not therefore exempted by the Regulations.To me this opening gambit sounds somewhat prejudicial because it suggests that the oweners or managers of Ashers Bakery claimed exemption from anti-discrimination law which I am pretty sure they did not. (Reading the full statement it makes more sense, as it is in effect a comment on the decision by the law-makers not to include a conscience clause for businesses.)
Judge Brownlie agreed with "the plaintiff's submission that same-sex marriage is or should be regarded as a union between persons having a sexual orientation" which I read as implying that those who enter into a "same-sex marriage" should be considered to have a "same-sex orientation" although I am not sure where this leaves bisexuals and others. More importantly, Judge Brownlie also agreed that "if a person refused to provide a service on that ground then they were discriminating on grounds of sexual orientation."
This has a certain logic but is it relevant? No-one claims that this business transaction fell through because the customer is in a same-sex marriage (we don't know that he is) and the managers of the Bakery repeatedly stressed that they serve all customers without discrimination.
Judge Brownlie appears to grant that the managers did not actually know that the customer was gay. But they had "the knowledge or perception" that Gareth Lee either is gay or at least "associated with others who are gay." With this the Judge appears to insinuate that the Bakery discriminates against customers who associate with gays which would be remarkable.
The Judge explains that
the defendants must have known that the plaintiff supported gay marriage and/or associated with others who supported gay marriage as this was a cake for a special event the plaintiff was attendingI would have thought that the message "Support Gay Marriage" which was to be put on the cake would have given the game away without any knowlegde of the event for which the cake was requested. But Judge Brownlie recognises that supporters of "gay marriage" are not necessarily gay and hence settles for the lesser claim that supporters of "gay marriage" can be presumed to associate with gays. In addition, she concludes that Karen McArthur, who served Gareth Lee, knew that "the plaintiff was a member of a small volunteer group; he wanted his own graphics on the cake" etc. In other words, the customer was thought to be in agreement with the message he wanted to have put on the cake.
Fair enough, but what exactly is the relevance of that? Does the Judge want to argue that the cake was refused not so much for the message it was intended to bear but because the customer was thought to agree with that message? Indeed, this seems to be where this is going. The argument at this point appears to be that the Bakery refused to bake this cake not because they could not support the political message the cake was to convey but because the manager "must either consciously or unconsciously have had the knowledge or perception that the plaintiff was gay and/or was associated with others who are gay."
How so? The critical point, as far as the Judge is concerned, seems to be that "the graphics being lawful and not contrary to the terms and conditions of the company" cannot themselves be considerd the grounds for refusing the cake; the ground must therefore lie in the Bakery's perception of the customer. Hence the claim that the Bakery did not discriminate against a political belief only but against a customer and that on the grounds of his sexual orientation. On a first reading of the summary, the reasoning seems to me hostile and torturous.
That the refusal also constituted discrimination against a political belief can be shown more readily by making the fair assumption that the Bakery would have been happy to provide a cake that spells "support marriage". In refusing to add the word "gay" the Bakery was restricting Gareth's Lee freedom to manifest his beliefs. What the defendants were asked to do may put limits on the manifestation of their own religious beliefs but this is necessary to protect "the rights and freedoms of the plaintiff...To do otherwise would be to allow a religious belief to dictate what the law is."
Judge Brownlie held that what the defendants were asked to do did not require them to support, promote or endorse any viewpoint.The defendants are welcome to their religious beliefs but must not "manifest them in the commercial sphere if it is contrary to the rights of others." To use an analogy I have employed earlier, bakers are printers, not publishers. A publisher may refuse to promote books of a certain political or ideological bent but a printer presumably is not permitted to refuse business on the grounds that they do not want to promote what is being printed.
The judgement has no direct application to charities. It concerns the commercial sphere and the rights of customers on providers. The decision implies that the conscience of providers must not interfere with the freedom of customers. The second part of the judgement is therefore arguably not so much a victory of "gay rights" over "religious rights" but of consumer rights over any other considerations. The owners and managers of Ashers Bakery are free to commission a Hindu printer for a booklet that proclaims that "Jesus Christ is Lord!" and may request a flower arrangement which spells "only mixed-sex marriages are genuine marriages" from a florist who happens to be a member of QueerSpace.
PS: The full statement by the Court is now also available
