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Mark Ellse: We cannot blame gays for undermining marriage. We are all responsible


Equality icing the cake – the last straw for traditional marriage?

Where on earth does one start in analysing the judgement handed down by District Judge Isobel Brownlie that Ashers Baking Company unlawfully discriminated against Gareth Lee, who asked for a cake decorated with a slogan of  “Support Gay Marriage” on the top?

On the face of it, this was an open and shut case under the 2010 Equality Act: ‘A person (a “service-provider”) concerned with the provision of a service to the public or a section of the public (for payment or not) must not discriminate against a person requiring the service by not providing the person with the service on grounds of a ‘protected characteristic’, one of which is sexual orientation. As Judge Brownlie said, government regulations were there “to protect people from having their sexual orientation used for having their business turned down”.

One might think that the accusation of discrimination would be easy to refute. ‘I don’t care whether he’s gay or straight, I’m not making a cake promoting gay marriage for anyone. That’s not discrimination, it’s our party line.’

Ah, but the Equality Act would regard this as ‘Indirect Discrimination’ because this ‘provision, criterion or practice is discriminatory in relation to a relevant protected characteristic’. If you decide not to make cakes promoting gay marriage, you are discriminating indirectly because, just as part of the community (the unprotected part) may want to have cakes proclaiming the case against gay marriage, other parts of the community will undoubtedly want cakes proclaiming the case for gay marriage. So you’ve got to allow them their pro-gay-marriage cakes.

As far as the Equality Act is concerned, the case will be an open and shut one. Appeal or not, Ashers Baking Company will lose, though the complexities will keep equalities legal professionals in full employment for years.

Why on earth, one wonders, does the law care about the sensibilities of Gareth Lee and not those of Ashers Baking Company? The answer is simple: there is an asymmetry in the relationship. Ashers are a service provider: Lee is a ‘person requiring the service’. The Equality Act protects the latter, not the former.

Were Gareth Lee a baker, an owner of Ashers could quite properly insist that Mr Lee bake them an anti-gay-marriage cake. Fair is fair! And, as has been pointed out, a Muslim printer who refused to print cartoons of Mohammed would undoubtedly be discriminating unlawfully and anyone who tried a test case would indeed apparently be protected, at least by the Equality Act.

So that’s that, is it? Every service provider has to provide services without discrimination on grounds of ‘protected characteristics’, one of which happens to be ‘religion or belief’?

Well, not quite. In 2012 Transport for London, after quite happily accepting posters that said ‘There’s probably no God’, refused to accept posters that read: “Not Gay! Ex-Gay, Post-Gay and Proud. Get over it!”

One might ask if TfL itself was discriminating unlawfully by denying the would-be advertisers a service on protected grounds but the High Court ruled that it was acting lawfully in banning the advert because it would “cause grave offence” to those who were gay. This is no defence under the Equality Act but the legislation is so muddled that, in case of doubt, prevailing fashion has more weight than legal niceties.

Of course the Equality Act does not stand alone. Article 18 of the Universal Declaration of Human Rights says that everyone has the right to freedom of thought, conscience and religion. That’s not going to be a great help: one can believe what one wants, provided that one is happy to provide pro-gay-marriage icing. The Equality Act, nodded through at the tail end of the Brown government by Cameron keen to show his liberal leanings, will for the moment trump everything else. Unlike the United States, we have no First Amendment that protects free speech.

We must ask whether the Ashers Baking Company case is the last straw for a conservative line on marriage?

A few weeks ago, in response to an article on this website, Oliver J.S McMullen commented: _…”gay marriage” is just symbolic tokenism – another way of “rubbing the Right’s nose in it”. The real threat to marriage and the family is easy no-fault divorce – it is selfish heterosexuals who took advantage of this who have betrayed the family.

And the more one thinks about this, the more true one sees it to be. Though equality issues are not irrelevant, we cannot deny that the manifest rot in traditional marriage far pre-dates any suggestion of gay marriage.

It is too easy to blame a few for something that most of us, straight as much as gay, bear responsibility. Most of us have to hold up our hands to so many mistakes of our own.

There is certainly little Christian authority for homosexual acts being more evil than other sexual sins. In 1 Corinthians 6 homosexuality is lumped with general ‘sexual sin’. In Romans 1, St Paul points to the absurdity of homosexual acts in the light of how we are made but then, having trapped us into condemnation, proceeds to move closer to areas where we all err: envy, strive, deceit and gossip. At the beginning of Chapter 2, he springs the trap: ‘You’ve no excuse, you who judge others because you do the same things yourself.’

And so we do. Gay or straight, it matters little, the human tendency to mess things up is so strong. In sexual matters, failure is far too easy. The lack of self control before marriage. The affairs along the way. As we get older, children gone, the temptation to think that we’ve stood it long enough; how hard it is not to value our own emotional satisfaction more than the witness to others the our own lives bear. If we don’t stick at it, why should those with children at home?

Difficult marriages are nothing new and every generation needs the mutual encouragement that society can provide. As our grandparents showed our parents, we must not forget that there is no better encouragement than society’s mutual commitment to keep the marriage promises.

The very reason that we make our vows in public is so that we will feel embarrassed (dare one use the word shame) when we break them. ‘To have and to hold, from this day forward, for better, for worse, for richer, for poorer, in sickness and in health, until death do us part.’ Not easy for any of us, but surprising influential.

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Mark Ellse
Mark Ellse
Mark Ellse is a physicist and author. He is a former headmaster, independent school inspector and A level chief examiner.

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