The Ashers Case. What's at stake? Compelled speech. March 2018 INSIDE

Transcription

1 The Ashers Case March 2018 What's at stake? Compelled speech We took issue with the message on the cake and not the customer and as a family we believe we should retain the freedom to decline business that would force us to promote a cause with which we disagree. Daniel McArthur The Belfast Gay Cake case has made headlines around the world. Ashers Baking Co., owned and run by the McArthur family, was sued after politely declining an order to decorate a cake with the slogan Support Gay Marriage. The McArthur family came to The Christian Institute for help in 2014, when the Equality Commission for Northern Ireland threatened legal action on behalf of the gay rights activist who placed the order. We helped defend them when they were brought before Belfast County Court. Shockingly, the judge ruled they had discriminated on three grounds: sexual orientation, religious belief, and political opinion. We helped them go to the Court of Appeal. But it upheld the previous ruling. Now we are helping them appeal to the UK Supreme Court. A hearing has been scheduled in Belfast for May The lower courts ruled against Ashers on three grounds. The appeal to the Supreme Court might succeed on one or more of these, helpfully limiting the damage even if they don t succeed on all grounds. So far the legal costs of defending Ashers total 200,000. We believe it is right to defend the McArthurs, despite the cost, because the implications of their case reach far beyond the doors of their bakeries. If Ashers loses on compelled speech, everyone loses. INSIDE The grounds of the Ashers case: Sexual orientation, Religion, Politics

2 The three discrimination grounds Ashers wa 1. Sexual orientation UK-wide Equality law prohibits those who provide goods and services from refusing customers on the grounds of sexual orientation. Northern Ireland and Great Britain have virtually identical laws on this. How the Supreme Court interprets the law in the Ashers case will affect the whole of the UK. The McArthurs did not know the sexual orientation of the activist, Gareth Lee, when they turned down his order for a Support Gay Marriage cake. Even if they had, it would have made no difference. As Daniel McArthur said after the Court of Appeal: We had served Mr Lee before and would be happy to serve him again. The judges accepted that we did not know Mr Lee was gay and that he was not the reason we declined the order. However, crucially, the court ruled they had breached associative discrimination law by declining to ice wording that was associated with gay people (see far page). Even supporters of the ruling question this. BBC legal correspondent Joshua Rozenberg said the fact that Northern Ireland has not redefined marriage may have informed the judges thinking: They felt it was their opportunity maybe to redress the balance in favour of the gay community. It s not a very legally sound argument but I do see why they wanted to do this. TATCHELL U-TURN Gay activist Peter Tatchell initially opposed Ashers. But in February 2016 he wrote: I have changed my mind. Much as I wish to defend the gay community, I also want to defend freedom of conscience, expression and religion. [Gareth Lee s] cake request was refused not because he was gay, but because of the message it is an infringement of freedom to require businesses to aid the promotion of ideas to which they conscientiously object. Discrimination against people should be unlawful, but not against ideas. THE IMPLICATIONS: EXAMPLES People from all walks of life support Ashers because they recognise their own freedom could be infringed. The McArthurs were asked to use their best efforts, to help promote something against their Christian beliefs. But no one should be forced to use their creative skills to celebrate ideas totally at odds with their own. The Christian Institute commissioned a legal opinion from Aidan O Neill QC setting out what could happen if Ashers lost in court. O Neill said there would be no defence to similar actions being taken against businesses in these scenarios. 1 THE MUSLIM PRINTER A Muslim printer is asked to print a satirical magazine containing cartoons of Mohammed. He refuses. The magazine sues. They say his religious motive for refusing constitutes religion or belief discrimination.

3 s held to have breached 2. Religion UK-wide Northern Ireland s laws against religion or belief discrimination pre-date those on the mainland. However, the Supreme Court s interpretation of the NI laws will directly impact how Great Britain s laws are applied. The County Court said where a person s act is motivated by his own religious belief this can constitute discrimination on grounds of religious belief. This risks turning the entire purpose of religious discrimination law on its head. Rather than protecting religious people it may deem their faithmotivated actions to be unlawful. This is particularly concerning since, unlike race or sexual orientation, religious belief governs the whole of a person s life and actions. The McArthurs are upfront about their Christian beliefs in their business dealings. They do not open on Sunday. They have turned down other cake orders for religious reasons, including designs involving nudity or bad language. They even named their business after the biblical tribe of Asher. Ashers is not a faceless multinational but a family business where the owners are closely involved in the work. This means their individual human rights are engaged in a way that would not be true for a large corporation. If turning down orders for religious reasons is deemed discrimination, then refusing to promote a nightclub, for example, could become illegal even though nightclubs do not come under any protected characteristic in equality law. ECNI NOT INTERESTED IN ASSISTING THE FAITH COMMUNITY The Equality Commission for Northern Ireland (ECNI) has faced criticism for its legal action against the McArthurs. The ECNI gets 6 million a year from the taxpayer and is meant to protect all sectors of the community, including religious people. The Court of Appeal questioned its failure to offer assistance to Ashers before threatening to sue them. This may have created the impression that the Commission was not interested in assisting the faith community where issues of this sort arose. 2 THE ATHEIST WEB DESIGNER 3 THE SATANIST CAKE An atheist web expert refuses to design a site presenting as scientific fact the claim that God made the world in six days. The customer sues him for discriminating against his religion. He says his creationism is central to his faith and the refusal hurt his feelings. He says the fact the refusal was motivated by the designer s atheism also constitutes discrimination. A Christian baker is asked to make a cake with an image celebrating Satanism. He refuses. The group which placed the order brings a county court claim, saying Satanist beliefs are protected by religious discrimination law.

4 APPLIES TO ALL GROUNDS 3. Politics Northern Ireland is the only part of the UK to outlaw discrimination on the grounds of political opinion. Court rulings on this do not directly impact the rest of the UK. These political discrimination laws have been in place since 1998 and were designed to tackle discrimination against Unionists and Nationalists. They were not intended to force people to express someone else s political opinions. If the ruling against Ashers stands it risks causing division in Northern Ireland by allowing people to sue businesses that refuse to help promote controversial political views. At the heart of this case is the freedom of the individual not to have to give expression to the political opinion or philosophical beliefs of others if he does not wish to. Ashers grounds of appeal to the Supreme Court, para. 13. NI only Associative discrimination Discriminating against someone because of their own religion or sexual orientation is unlawful. If a shop refuses a customer because of the religion or orientation of his friend, that too may be said to be unlawful. This is associative discrimination. The ruling against Ashers upheld a novel and worrying extension of this. Judges said: The benefit from the message or slogan on the cake could only accrue to gay or bisexual people. it was the use of the word Gay in the context of the message which prevented the order from being fulfilled. This was a case of association with the gay and bisexual community... This outlaws discrimination against ideas and has shocked many observers. It includes ideas related to religion and even race. 4 ROMAN CATHOLIC PRINTER 5 LESBIAN T-SHIRT COMPANY A Belfast printing company run by Roman Catholics declines to produce adverts calling for legalised abortion on demand. The abortion campaigners claim for political and religious belief discrimination, citing the printer s beliefs, as well as their own, as the basis of their legal action. A T-shirt company in Northern Ireland owned and run by lesbians declines to print T-shirts with a message describing gay marriage as an abomination. They are taken to court by the customer who seeks damages for religious and political opinion discrimination.

5 What the commentators say Star of X-Men and Star Trek Sir Patrick Stewart I am concerned that the Equality Commission have now added political discrimination to the discrimination on sexual orientation as a ground on running their case against Ashers... I think they have twisted the thing about and it is unwise. I found myself on the side of the bakers... It was the actual words on the cake that they objected to And I would support their right to say no, this is personally offensive to my beliefs, I will not do it. Jeffrey Dudgeon, NI gay rights campaigner In a liberal democracy the right to live one s life in accordance with deeply held, nonviolent beliefs needs to be protected whether or not you or I happen to agree with them. Geoffrey Alderman, historian and columnist for The Jewish Chronicle Surely it is an elementary feature of true democracy that nobody should be obliged by law to affirm that which he or she does not believe. TV celebrity and former Tory minister Ann Widdecombe The decision of the court of appeal in Belfast in the case of Ashers bakery cannot be welcomed by anyone who cares about free speech. Editorial, the judge s findings in relation to discrimination on grounds of sexual orientation do not make much sense. As it stands, this judgment leaves little or no room for freedom of conscience in business. Alasdair Henderson, barrister at One Crown Office Row Ashers didn t refuse to sell the cake to Mr Lee because he was gay. They refused to ice a slogan on the cake that attacked their most cherished beliefs. Allison Pearson, columnist for The Daily Telegraph Should freedom of conscience always be trumped by antidiscrimination rights? Editorial, Melanie McDonagh, columnist for The Spectator You are not a mere machine in the cake decoration business; rather like a potter, you have a hand in the thing you produce; you become a party to it.

6 Waterfront Hall, March 2015: thousands hold signs showing support for Ashers Outpouring of public support The McArthur family have received enormous support from members of the public. When The Christian Institute held a Support Ashers event at Belfast s Waterfront Hall, the 2,500-seat venue was full to capacity. Hundreds more stood outside singing hymns. Polling in Northern Ireland by ComRes found that 77 per cent of people believe the Equality Commission should not be spending public funds pursuing Ashers through the courts. Some 90 per cent agreed that equality laws should be used only to protect people from discrimination and not to force people to say something they oppose. 90 % ComRes interviewed 1,000 NI adults aged 18+ by telephone between 10th and 15th March 2015 Polling in Great Britain found 69 per cent of people believe businesses such as bakeries should not face legal action for following their beliefs. 69 % ComRes interviewed 2,000 GB adults aged 18+ online between 4th and 6th November 2016 Sign the petition Sam Webster, The Christian Institute s in-house solicitor, accompanies Daniel and Amy McArthur into court christian.org.uk/ supportashers Over 22,500 people already have CHRISTIANORGUK CHRISTIANORGUK Registered office: The Christian Institute, Wilberforce House, 4 Park Road, Gosforth Business Park, Newcastle upon Tyne, NE12 8DG Tel: Fax: info@christian.org.uk Website: Registered in England as a charity Charity No Company No A charity registered in Scotland Charity No. SC AC01