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Hypocrisy of 'gay wedding cake' case

By Brendan O'Reilly - posted Friday, 28 October 2016


There has been limited reporting in this country about the Belfast bakery that recently lost its appeal against a 2015 court ruling. The higher court agreed that the business had discriminated against a homosexual customer by refusing to ice a cake. The Northern Ireland Equality Commission had pursued the lawsuit.

The plaintiff, a member of the LGBT advocacy group Queer Space, had wanted a cake featuring Sesame Street puppets Bert and Ernie with the phrase "Support Gay Marriage", for a private function marking International Day Against Homophobia. The bakery argued it was happy to bake for anyone but could not put messages on its products at odds with the business owners' Christian beliefs. The customer's sexuality was never an issue, according to the bakery. The issue for them was the message the customer wanted the bakery to create on its product.

The issue (following the failed appeal) is whether the decision is a victory for equal rights for gays, or largely an authoritarian precedent denying freedom of expression for the bakery owners (and other businesses). The business seemingly had been required by British law to agree to adorn a cake with a slogan they had a religious objection to.

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A further issue is how the matter might be treated under Australian law. From 1 August 2013 it became be unlawful in Australia to discriminate against a person on the basis of sexual orientation, gender identity and intersex status, under the Sex Discrimination Amendment (Sexual Orientation, Gender Identity and Intersex Status) Act 2013.

(Very broad) Tasmanian anti-discrimination legislation earlier this year attracted notoriety, when a transgender activist lodged a complaint concerning a Catholic Church booklet defending traditional marriage. [The complaint was later withdrawn.] More recently McPherson's Printing Group declined to print an anti same-sex marriage book due to the 'subject matter and content of the book'. In this case the sponsors of the book indicated that they do not intend taking any anti-discrimination action against the printer.

In delivering the "gay wedding cake" appeal judgment, Northern Ireland's Lord Chief Justice, Declan Morgan, said the defendants had directly discriminated. He rejected the argument that the bakery would be endorsing the slogan by baking the cake. "The fact that a baker provides a cake for a particular team or portrays witches on a Halloween cake does not indicate any support for either," he said. Justice Morgan said the original judgment had been correct in finding that "as a matter of law" they had "discriminated against the respondent directly on the grounds of sexual orientation contrary to the Equality Act (Sexual Orientation) Regulations 2006".

One critic of the decision, the Convener of the Presbyterian Church's Council for Public Affairs, Very Rev Dr Norman Hamilton, said the judgment will have "far reaching implications for all business owners by confirming that they cannot in conscience refuse to be involved in the promotion of particular causes or messages that run contrary to their beliefs - religious or otherwise". He felt there was a need to ensure that freedom of conscience and of expression were properly valued and respected.

An interesting feature of the UK Equality Act 2010 is that the protected characteristics (apart from sexual orientation) include religion or belief. Imagine what would happen if a religious person approached a bakery owned by gay proprietors seeking a cake to be iced with the slogan "marriage can exist only between a man and a woman". Worse still, imagine the reaction if they were asked to ice the (now notoriously regarded) quote from the Old Testament (Leviticus): "If a man lies with a male as with a woman, both of them have committed an abomination; they shall surely be put to death." I doubt that such owners (and I would not blame them) would like being forced to accept such tasks. It is possible in theory that refusal in such cases could (in the UK) have them hauled before the courts on discrimination charges.

It is worth noting that one of the historic gripes of the gay and lesbian communities was that in the past they were denied freedom of expression because their marches and Mardi Gras had been banned or were not readily granted permits. Even today, gay pride marches are regularly banned in Russian cities, attracting strong condemnation by the gay community in the West. There is surely a hypocrisy in demanding freedom of expression for yourself, while at the same time denying it to others.

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What should count in cases like the "gay wedding cake" is tolerance and common-sense. Compare the case of conscientious objectors who are called up for compulsory military service. Their objections are appropriately accommodated in many countries through alternative civilian service or non-combat military roles. There are enough cake shops around that the gay activist could surely have chosen one that would have relished his business. (I wonder whether the complainant specifically targeted Ashers BakingCompany knowing that it was run by committed Christians who would likely refuse to ice the gay marriage slogan.) I also wonder what the attitude of the PC brigade would be, if an Islamic owner of a bakery refused to ice an image of Muhammad on a cake.

A precedent has now been set whereby discrimination laws have become a weapon to oppress anyone who dissents from today's politically-correct rules. The activists (and the anti-discrimination bureaucrats backing this case) may have had a victory in law but they have lost some public sympathy by being seen as intolerant themselves.

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About the Author

Brendan O’Reilly is a retired commonwealth public servant with a background in economics and accounting. He is currently pursuing private business interests.

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