Can a private person use the power of the state to compel you to endorse a political statement you profoundly disagree with? That is the question before the UK Supreme Court tomorrow, sitting for the first time in Northern Ireland.
It will not be framed that way. Instead it will be framed as ‘a Christian couple wanting to discriminate against a gay man in refusing to bake a cake’.
Colin and Karen McArthur own Ashers Baking Co in Belfast and are practising Christians. Gareth Lee, a gay man, placed an order with the bakery for a cake decorated with the words ‘Support gay marriage’ (which is still not lawful in Northern Ireland). Mr and Mrs McArthur refused the order because they regard gay marriage as sinful and they run a ‘Christian business’.
Lord Pannick QC summarises the issues here: ‘The Northern Ireland Court of Appeal held that Mr Lee had been unlawfully discriminated against on the ground of sexual orientation, contrary to the Equality Act (Sexual Orientation) Regulations (Northern Ireland) 2006. When a person offers goods, services or facilities to the public, for example through a shop or a hotel, the law imposes a duty not to discriminate on prohibited grounds such as race, sex, religion or sexual orientation. This has been the law in the UK (and the US) for decades, although the prohibited grounds have expanded over time.
‘The Northern Ireland Court of Appeal held that the owners of a cake shop are entitled to oppose same-sex marriage. But if they wish to operate a public business, their right to the exercise of their religion cannot take priority over the right of others not to be discriminated against on protected grounds.’
In other words, they are entitled to oppose same-sex marriage apart from the occasions when private citizens with the backing of the State demand that they do explicitly support gay marriage. When that happens, the State will threaten them with financial ruin unless they conform.
Freedom of religion is an important issue here, but what this case is really about is compelled speech. In the West, we are seeing freedom of speech under relentless attack in the academy, through ‘hate crimes’ and political correctness. But what is even worse, what is truly the death of the liberal Western values, is the creeping incidence of compelled speech: endorse my view or else. Gareth Lee says to the McArthurs: endorse gay marriage or I will litigate you through the courts to your financial ruin, and the State will back me.
The McArthurs argue that their right to freedom of expression means they cannot be required to write on the cake a slogan which they do not accept. The Northern Ireland Court of Appeal disagreed: the slogan expresses the views of the customer, not the baker. The bakery is simply providing goods to the public.
This point is, I believe, the crux of the case. Who gets to decide whether the slogan expresses the views of the customer or the baker? The courts so far have said, ‘We decide that point, that it is the customer’s view, not the baker’s’. Yet when it comes to ‘hate crimes’ it is the subjective feelings of the victims that count, not the objective views of the court. Surely if the McArthurs believe they are being compelled to express their view, they should be given the benefit of the doubt.
In fact, on this point the Court of Appeal is being profoundly dishonest, and I wonder if the intellectual powerhouses there are being somewhat snobby about the profession of cake-baking. Perhaps they just don’t believe someone can be emotionally invested in the baking of a cake, such that writing a slogan on a cake amounts to their endorsement of that view.
This is a small cake shop, or, as they say in the US, a closely held company. It not a massive Mr Kipling factory where much of the work is done by machines.
Instead, when it comes to baking this cake, one assumes there will be a point when either the McArthurs or a supervised employee will literally have to write the slogan ‘Support gay marriage’ on it. This is speech, and to make them write this slogan is to force them to endorse something, a political idea, against their conscience.
Perhaps the courts cannot understand how personal this is to the McArthurs, and how it does indeed involve compelled speech, but it does. Therefore, to compel the McArthurs to endorse a view against their conscience is totalitarian; it is totalitarianism six ways to Sunday even if it is displayed on a delicious Victoria sponge cake. This is more death by the Equality Act rather than death by chocolate.
What the McArthurs have not done is refuse to serve a gay customer because he is gay. A straight person could have asked for this cake and their refusal would be the same. What the McArthurs have done is to refuse to use their professional skill to endorse something which they believe is profoundly wrong, namely gay marriage, and which is not currently legal in Northern Ireland.
I won’t say much about the individual, Gareth Lee, who magically picked this bakery to make this cake when he could have gone elsewhere. An amazing coincidence, you might say. I will not comment on the fact that what Lee is seeking to do is to humiliate this couple into making them endorse something they know to be wrong. Some might say that is a case of nasty bullying and a shamefully self-absorbed way to conduct your life. Some might say that seeking destroy this couple because they disagree with you is disgusting, dishonourable and immature.
As for the Supreme Court, we shall see what they decide. But if they do decide that one person can compel their neighbour into making a political statement then I look forward to all the Muslim bakers being forced to bake cakes bearing the image of Muhammad, or the Jewish baker baking a cake with the slogan ‘Israel is a terrorist State’, or a pro-choice baker baking a cake that bears the slogan Save the Eighth Amendment.
Or perhaps it is the case that all cakes are equal, but some cakes are more equal than others.