When the United Kingdom’s Supreme Court ruled a Christian baker had the right to refuse a customer’s request to promote homosexuality through his work, it produced a sigh of relief for the baker.
But Sam Webster, the in-house solicitor who argued the case for the Christian Institute on behalf of Ashers Bakery, says the ruling will do much more than that.
“Principles from the Ashers case will impact other cases for years to come, not only in goods and services but also in other spheres,” he wrote in an analysis of the case on the institute’s website. “This is good news.”
“The phrase ‘landmark judgment’ can often be overused. But in terms of what will surely flow from Ashers, it is most apt,” he said.
The high court, 5-0, overturned a lower court’s ruling of discrimination, ruling Ashers Baking Co. rejected the message, which was its right, not the messenger.
The U.S. Supreme Court faced the same issue, ruling in June for Christian baker Jack Phillips based on the “hostility” toward Phillips’ faith exhibited by the state of Colorado.
The core issue of the conflict between First Amendment rights and the Supreme Court’s declared right to same-sex marriage remains unresolved.
There are several cases moving toward the U.S. Supreme Court that offer an opportunity to address the issue.
But in the U.K., as Webster explained, the Supreme Court accepted that the objection by the bakery owners, the McArthurs, was “to the message and not to any particular person or persons.”
As the judgment states: “The evidence was that they both employed and served gay people and treated them in a non-discriminatory way.”
Webster said that “just because the message on the cake ‘has something to do with sexual orientation of some people’ does not mean that it is a case of discrimination on grounds of sexual orientation.”
“There must be a closer association. The ‘benefit’ from the message on the cake – ‘Support Gay Marriage’ – does not accrue exclusively to homosexual people, and a person’s sexual orientation does not determine whether they support gay marriage. The Supreme Court justices therefore rejected the argument that there had been ‘associative discrimination.'”
He said the man demanding the message promoting homosexuality was perceived to be supporting that agenda.
“However, regard must be had to the McArthurs’ fundamental rights to freedom of thought, conscience and religion and freedom of expression,” he said.
“The UKSC agreed that those rights afford protection against ‘compelled speech’ – by being required to produce the cake the McArthurs were required to express in icing a message with which they deeply disagreed. Significantly, the UKSC accepted that the principles of compelled speech which have developed in the U.S. can apply in the U.K. The lower courts had rejected this approach, saying that no one would have thought the McArthurs believed in same-sex marriage if they had produced the cake as ordered. But the UKSC held that there is no requirement that the person who is compelled to speak can only complain if he is thought by others to support the message,” he wrote.
It was only fair, the solicitor wrote.
“If the earlier findings had stood, it could have meant Christian service providers having fewer rights than atheists. For example, a Christian printer might not be able to refuse to print an advert for Ladbrokes, even though the order does not involve a characteristic protected under equalities legislation.”
The judgment will apply to many other cases, depending on context, he said.
“To the extent that the district judge held that the bakery had discriminated unlawfully because of its owners’ religious beliefs she was wrong to do so,” the court said.
“Less favorable treatment was afforded to the message not to the man,” and it specified that “obliging a person to manifest a belief which he does not hold has been held to be a limitation on his article 9(1) rights.”
The judges said the “freedom not to be obliged to hold or to manifest beliefs that one does not hold is also protected by article 10 of the Convention.”
“Nobody should be forced to have or express a political opinion in which he does not believe.”
Ashers appealed to the Supreme Court in May after a lower court in 2015 ruled the bakery had violated anti-discrimination laws that protect people on the basis of sexual orientation.
Belfast County Court had ruled against Ashers, run by a Christian family, the McArthurs, for declining an order to make a $50 cake with the campaign slogan “Support Gay Marriage” for a gay rights event because it conflicted with their deeply held religious beliefs.
The Court of Appeal in Belfast upheld that decision in 2016.
The attorney general for Northern Ireland, John Larkin, had argued in court on behalf of the bakery.
Larkin asserted Ashers’ owners have the right to reject a request to put a pro-homosexual message on a cake under the nation’s freedom of speech laws as well as the European Convention on Human Rights.
