The Supreme Court in Northern Ireland has ruled in favour of a baker who refused to bake a pro-gay marriage cake featuring Bert & Ernie of Sesame Street.
The story first made headlines in 2014, when a gay rights activist visited Ashers Baking Company and asked them to make a cake that said ‘Support Gay Marriage’ underneath a photo of Bert & Ernie. Northern Ireland is the only part of the UK that hasn’t passed a law legalising same-sex marriage.
Bert doesn’t like that.
The bakery’s staff passed the order along to their head office, who declared the cake to be at odds with their beliefs. In the end, another bakery made the cake, and the issue was taken to court.
The activist took the issue to court with the assistance of the Northern Irish Equality Commission, and initially, the court agreed that the bakery’s actions were discriminatory. That verdict was upheld following an appeal, but this week, a second appeal was successful, and the Supreme Court found that the bakery’s actions were not discriminatory.
This decision comes after the United States Supreme Court made a similar ruling in June. They ruled in favour of a Colorado-based baker who refused to bake a wedding cake for a gay couple in 2012.
While the US Supreme Court focused on the religious freedom (a right guaranteed by the First Amendment) of the baker, the UK Supreme Court focused on not forcing the bakery to ice a message that it profoundly disagreed with.
“The bakers could not refuse to supply their goods to Mr Lee because he was a gay man or supported gay marriage, but that is quite different from obliging them to supply a cake iced with a message with which they profoundly disagreed.”
Australia hasn’t yet had a case like this, although a case where Christian Youth Camps were sued for denying a group of gay teenagers use of their facilities found that CYC had unlawfully discriminated against the group.
The CYC tried to use the religious freedom exemptions included in the Equal Opportunity Act of 1995 (VIC), but the court found that since the group was not ‘a body established for religious purposes’, the exemptions weren’t applicable. If a bakery tried to use a similar argument to those used in the US or UK in Australia, it might have difficulty given bakeries don’t exist for religious purposes.
Activists fear that these rulings will set a precedent that allows private businesses to discriminate on the basis of sexuality and defend their right to do using an argument of religious freedom, or free speech. The manager of Ashers Baking Company described the Supreme Court’s decision in their favour as a “victory for free speech” when he spoke to the media.
The UK case is tricky, because the bakery argued that they weren’t discriminating against the activist because he was gay, it was because they didn’t agree with the message he wanted on the cake. So the bakers in the two cases used different arguments, but achieved the same results.
These cases raise all sorts of questions, including: where does one person’s right to free speech end and another’s begin? Which other groups can be discriminated against on the grounds of religious freedom or free speech?
Anti-discrimination laws exist for a reason. But these cases tell us that they aren’t enough when religious freedom or free speech are perceived as being under threat, as does yesterday’s news that Prime Minister Scott Morrison supports the right of religious schools to expel students on the basis of their sexuality. I just hope that if a similar case comes up in Australia, the courts do the right thing.