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Wedding Cake Wars Take an Interesting UK Turn

Two weeks ago, the UK Supreme Court issued an important ruling in a controversy American church-state lawyers will find familiar. In Lee v. Ashers Baking Company, the court ruled that a Belfast bakery did not violate British anti-discrimination laws when it declined, because of the owners’ Christian convictions, to fill a customer’s order for a cake promoting gay marriage. The British case strongly resembles—though not exactly—a case our own Supreme Court decided in May, Masterpiece Cakeshop v. Colorado Civil Rights Commission. But while the American court sidestepped difficult questions, the British court addressed them directly. The ruling thus offers a roadmap for how our own Supreme Court might decide a similar dispute in the future.

Ashers began four years ago when Gareth Lee, a gay man, placed an order with Ashers Baking Company for a cake for a party at QueerSpace, an LGBT community organization. Lee ordered a custom cake with a picture of the Sesame Street characters Bert and Ernie, the QueerSpace logo, and the slogan “Support Gay Marriage.” Ashers’ owners, Amy and Daniel McArthur, declined to fill Lee’s order. The McArthurs are Christians with religious convictions against gay marriage, and they explained to Lee that they could not in conscience create the cake he requested.

Lee found another bakery and, with the support of Northern Ireland’s Equality Commission, sued Ashers for discriminating against him in violation of British law. He argued that Ashers, a business open to the public, had violated his civil rights by refusing him service because of his sexual orientation and because of his political opinions, that is, his support for gay marriage. The lower courts ruled for Lee and awarded him £500 as damages.

The UK Supreme Court unanimously reversed. Writing for the court, Lady Hale explained that Ashers had not discriminated against Lee because of his sexual orientation. The McArthurs had objected “to the message not the man.” They had sold Lee cakes in the past and would have done on this occasion as well—just not a cake with the message, “Support Gay Marriage.” Moreover, the McArthurs would have refused to create a cake with that slogan for a straight customer as well. The mere fact that a customer requests a cake that celebrates gay marriage, she wrote, does not imply that the customer is himself gay—or that the refusal to create such a cake constitutes discrimination on the basis of sexual orientation.

Lee had a somewhat stronger political discrimination claim, but it also failed. The McArthurs had not refused service to Lee because he favored gay marriage as a political matter, Lady Hale wrote. They had declined to express a political opinion with which they themselves disagreed. And they had a right to decline. The European Convention on Human Rights, which Britain has signed, forbids laws compelling people to express beliefs they do not hold—at least where the laws are not “necessary” to promote a “legitimate” state goal. Here, the government had compelled the McArthurs to express an opinion in favor of same-sex marriage, a cause they opposed.

The trial court had reasoned that the public would not conclude a baker supported gay marriage simply because he sold someone a cake with a pro-gay marriage slogan. Presumably, people would understand the sentiment expressed to be the customer’s, not the baker’s. But Lady Hale rejected this reasoning. The McArthurs could legitimately worry that people would see their logo on the cake box and assume they supported gay marriage. Anyway, the point was that the state could not force someone to create a product that “actively promoted” a cause the person disapproved.

Finally, compelling the Ashers to create the cake Lee requested was not necessary to pursue a legitimate goal. True, the state had an interest in ending discrimination on the basis of sexual orientation, which surely qualified as legitimate. Denying someone equal service because he is gay “is deeply humiliating, and an affront to human dignity,” Lady Hale wrote. But the McArthurs’ refusal did not implicate that interest, since refusing to design a cake with a pro-gay marriage slogan did not constitute discrimination on the basis of sexual orientation. “It does the project of equal treatment no favors,” Lady Hale wrote, “to extend it beyond its proper scope.”

This British case has implications for American law. Recently, American courts also have addressed cases in which vendors refuse, from religious conviction, to provide services in connection with gay weddings—though the American cases typically involve refusals to provide services for the customers’ own weddings, not services that endorse gay marriage in the abstract. Do such refusals violate the customers’ civil rights? Our doctrines differ somewhat from Britain’s—American courts speak in terms of “compelling interests” rather than “legitimate” aims, and would probably not consider the European Convention on Human Rights—but the arguments and legal concepts are essentially the same. The leading American case is Masterpiece Cakeshop, in which our Supreme Court ruled in favor of a Christian baker who declined to create a cake for a gay wedding. But the Masterpiece Cakeshop Court sidestepped much of the analysis, ruling that the state agency’s open hostility to the baker’s religious convictions itself violated his free exercise rights. The decision provides relatively little guidance for future cases.

This is where Ashers may be helpful. Even though the issues do not line up exactly, Lady Hale’s opinion addresses many of the difficult questions that arise in the American context as well: whether denying services in connection with gay weddings is equivalent to denying services to gay persons; whether one should attribute certain kinds of commercial speech to the vendor or the customer; and whether the state’s interest in ending discrimination in public places overrides the religious convictions of persons who operate small businesses. The fight over these issues is still in its early stages, in Britain and America. This decision may provide guidance for the way forward.

Reader Discussion

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on October 23, 2018 at 10:50:48 am

Based on the politics oozing out of all the UK's pores today, including (especially) its government pores, I have to say I was stunned by this ruling.

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QET
on October 23, 2018 at 12:02:31 pm

Don't get your hopes up too high, now!

It appears the Brits are still going after Tommy Robinson for "illegal" journalism for publishing "public" information on the Muslim grooming gangs responsible for the reprehensible rapes of your British girls.
We can't have that now can we. Move along, nothing to see here.

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gabe
on October 23, 2018 at 13:50:47 pm

After watching The Great British Bake-Off, is anyone surprised that the Brits get the firmer, more substantive result--while the Yanks barely got icing on a meringue?

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nobody.really
on October 23, 2018 at 14:22:03 pm

luvv'd it!

Then again, one would hope that your use of the term "firmer" is not intended as a slight upon the Brits peculiar way of preparing beef?

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gabe
on October 23, 2018 at 22:00:21 pm

The President of the UKSC is Lady Brenda Hale.

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Ross
on November 14, 2018 at 23:56:25 pm

Americans can only hope that the US Supreme Court somehow finds out about this unique, British flash of reality and applies it the next time that some homosexual jerk plays the ACLU/lib/lefty/"progressive"/moral relativism/subjectivism/Democrat game and attempts to test honest, decent, natural law-loving, bakers. We can only hope that very soon Miss Ginsburg moves on to bigger and better things and then the fate of this approach to insanity is sealed, what SIX HEALTHY JUSTICES TO THREE PATHETIC-IDIOT LIB/LEFTY/"PROGRESSIVE"/MORAL RELATIVIST/SUBJECTIVIST SUPREME COURT "JUSTICES"?

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Luis
on December 06, 2018 at 19:10:32 pm

[…] Movsesian, Law & Liberty:  Wedding Cake Wars Take an Interesting UK Turn: on the possible implications of the UKSC judgment in Ashers Baking for US […]

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Law and religion round-up – 28th October | Law & Religion UK

Law & Liberty welcomes civil and lively discussion of its articles. Abusive comments will not be tolerated. We reserve the right to delete comments - or ban users - without notification or explanation.