That really has nothing much to do about cake… unfortunately
We can’t have our gay cake and eat it too, apparently, as the Supreme Court rules that refusing to bake the infamous cake was in fact not an act of discrimination based upon sexual orientation, but is part of the legal right to exercise a refusal to promote a message with which you ‘profoundly disagree’.
The cake is one delicately iced with Sesame Street gay icons Bert and Ernie and the slogan ‘support gay marriage’. It was ordered by Mr Lee for an event marking the International Day Against Homophobia and Transphobia.
Bit ironic, isn’t it?
Now, I don’t know about you, but I was with the angry horde in 2014 condemning the McArthur’s for their blatant discrimination against a gay man. He just wanted a cake. What was so wrong with that?
The McArthur’s (pictured above) were the owners of the bakery in question, Ashers Baking Company Ltd, and are known devout Christians and very much live their lives through their religion.
But I mean… do they not bake wedding cakes? Or those flashy gender-reveal cakes for those outrageously-American gender-reveal parties (You know the ones, those really cheesy Instagram-recommended videos that make me recoil from my phone)
Do they check to ensure that these heterosexual couples have obeyed the strict rule of God? God forbid they had sex before marriage! Are their children bastards? (I’m not being awful here – this time – it’s a ‘technical’ term used in the bible – I swear!)
Or are they not bothered because the person in front of them is straight.
The McArthur’s were adamant that they had no opposition to Mr Lee’s sexual orientation, but simply the message on the cake.
A minor technicality in my eyes.
But one which the Supreme Court felt clearly decided the case.
So, what is the law?
The Equality Act 2010 combined all rules that previously existed on discrimination into a single act, detailing so-called ‘protected characteristics’ upon which discrimination is against the law.
In this case, two of them were considered: sexual orientation and religious belief and political opinion.
This recent judgement is just one in a long line, beginning with the initial decision that there was direct discrimination against Mr Lee. It was a win for the LGBTQ community in a place that still has the most limited rights for gay couples in the UK.
Needless to say, the McArthur’s didn’t feel the same, and they appealed the decision.
On the 10th October, the UK Supreme Court handed down their judgment on the case, this time in favour of the McArthur’s. They stated that for all claims of discrimination there was none to be found. The distinction lied heavily on the fact that the McArthur’s opposition was to the message, and they disagreed on the basis of their beliefs concerning marriage and not in any way to Mr Lee or his characteristics.
On the face of it, you may say that this is a step back, that this breaks open the floodgates that have only just recently been mended, (and barely, let’s be honest). Where it may be true, it is necessary to think about the case in regards to the rights and freedoms that we all like to express (me especially – can you tell? I just called some imagined little Irish bairns a naughty word).
As a blogger I express my opinions through posts such as this on a range of topics, legal, political, downright stupid – gay cake, am I right? – and I can write what I want and say what I want (within reason, of course), due to the human rights I am granted.
The European Convention of Human Rights (ECHR) protects the rights of all people in The Council of Europe, a group, including the UK, of 47 member countries who have agreed to follow the convention. It consists of a number of ‘articles’ which detail basic human rights that everyone should have and prohibits unfair and harmful practices.
Two articles of the ECHR are heavily connected to this case, and were considered in court:
Article 9 – The right to freedom of thought, conscience and religion.
Article 10 – The right to freedom of expression, including the freedom to hold opinions and receive and impart information and ideas.
It was expressed greatly that these rights include the freedom to not to express a political opinion in which one does not believe.
Mr Lee was not refused a job or service altogether, he was refused a cake with a particular message on it. Without this message, the McArthur’s would have readily made the cake for Mr Lee, and similarly they would have refused the particular cake to any other customer, regardless of their sexual orientation.
Despite how it may seem, I have to agree with the Judges reasoning.
The McArtur’s didn’t oppose Mr Lee, they oppose Gay Marriage, and they are fully entitled to that opinion. They own a small business and they make cakes, they have the right to decide what they make and what they don’t. Say the roles were reversed, would Mr Lee have to make a cake with a homophobic slur on it if requested?
Like me, many others feel that this was taken too far – Mr Lee himself said: “all I wanted to do was order a cake in a shop” – the cake has been dubbed the most expensive in history; originally costing £36.50, it cost nearly £500,000 in legal fees.
Now, I don’t know about you, but I’m dying for some cake.
A Tesco value one will do, though.
You can find out more about the case and the events that happened in those four years, via the BBC here.
Law Student Rants 