Posted: 27 October 2016
Richard O'Dair, employment law barrister and LCF member, reflects on the recent ruling of the Northern Ireland Court of Appeal in the Ashers case.
"If this be so, our God whom we serve is able to deliver us from the burning fiery furnace, and he will deliver us out of your hand, O king. But if not, be it known to you, O king, that we will not serve your gods or worship the golden image that you have set up." (Daniel 3:17-18, ESV)
"But even if you should suffer for righteousness' sake, you will be blessed. Have no fear of them, nor be troubled, but in your hearts honour Christ the Lord as holy, always being prepared to give a reason for the hope that is in you; yet do it with gentleness and respect…" (1 Peter 3:14-15, ESV)
"Speak up for those who cannot speak for themselves…" (Proverbs 31:8a, NIV)
It is rare that a legal decision attracts widespread criticism across the social and political spectrum but the recent decision of the Court of Appeal in Northern Ireland in Lee v Ashers Baking Company Ltd & Others  appears to have achieved precisely this: parties as diverse as Peter Tatchell, the Telegraph, The Guardian and The Independent have all chimed in to criticise the decision.
As will be well-known to most by now, the case concerned Ashers bakery, owned by a Christian couple, Colin and Karen McArthur, who refused to supply a cake to Gareth Lee, a gay rights activist, which contained a message supportive of the campaign within Northern Ireland for gay marriage. The McArthurs' refusal was based on the biblical belief that marriage is solely between a man and a woman. They were supported spiritually and financially in the subsequent legal travails by the Christian Institute.
The NI Court of Appeal decision in Ashers
The NI Court of Appeal held that this was direct discrimination on the grounds of sexual orientation, regardless of whether or not the customer was gay, due to the concept of associative discrimination. In other words, the result would be the same even if the customer was a heterosexual supporter of gay rights. This was because such a person would be associated with gay or bisexual people and therefore be protected by the relevant legislation  (see paragraph 58 of the judgment).
The Court further considered whether, in order to make the legislation compliant with the Human Rights Act 1998, the regulations should be read as containing an exception in the case such as this where the alleged discrimination was expression of religious belief (Article 9) or a manifestation of freedom of speech (Article 10).
The Court said that no such exception was necessary. The legislature had already balanced the conflicting rights of gay and religious communities in the commercial sphere and come down in favour of the former.
As to freedom of speech, Ashers and the McArthurs relied on negative freedom of speech i.e. the freedom not to be forced to speak out in favour of a cause you do not believe in. The Court held that the McArthurs were not speaking at all. Baking the cake would not indicate that the McArthurs were personally endorsing the message (paragraph 67) and it was open to the McArthurs to amend their commercial offer e.g. by just offering to make birthday cakes (paragraph 66).
Background: the decision of the Supreme Court in Bull v. Hall 
The NI Court of Appeal's reasoning heavily relied on the earlier Supreme Court case of Bull v Hall. In this case, Christian hoteliers were found liable of directly discriminating in the provision of goods and services against a gay couple when they imposed a requirement that any couple wanting to book a double room in their premises must be married.
A majority of the Supreme Court held that this was direct discrimination against the gay community because at that time gay marriage was not recognized in English law.
The relevant regulations had to be read so as to be subject to the Human Rights Act 1998 - in particular Article 9 on Freedom of Religion - but the Supreme Court held that that made no difference. Parliament was entitled to come to the conclusion that the protection of the rights of the gay community required the hoteliers' rights to give way.
A striking feature of both the Ashers case and the Bull case is that in both instances the complainant was easily able to obtain the relevant service elsewhere.
The heart of the problem facing the courts in Bull and Ashers is clear. Article 9 protects the freedom not only to believe but also to manifest that belief i.e. live it out. It is engaged by working as an employee as the European Court of Human Rights held in Eweida  so it should also be engaged by self-employment.
Whether or not the conduct of Ashers did fall within the natural reading of the Regulations (see below) there can equally be no doubt that the very same regulations restrict the Defendants' freedom of religion.
The question is whether that restriction is justified as a proportionate means of achieving a legitimate end: namely the protection of the freedom of the gay community.
The answer to the Supreme Court in Bull and the NI Court of Appeal in Ashers was "Yes".
But why is the answer "Yes"? It cannot be because Parliament has said so because the role of the Courts in human rights cases is supposed to be to ensure that Parliament does not infringe fundamental rights. Moreover, the Courts seem to have assumed that Parliament is entitled to makes its aim the protection of a particular group regardless of the cost to the rights and freedom of others. In other words, Parliament is entitled to say we have chosen to act without regard to the concept of proportionality. That cannot be right.
Moreover, in considering proportionality a decision maker must always consider whether there are alternative means of achieving the goal. As many commentators have suggested, surely a more reasonable way to proceed is to ask if the rights of the religious person or group affected can be "reasonably accommodated"? If the goal is ensuring access to services for the LGBT community why can that goal not be achieved by the following suggested formulation:
It ought to be permissible to discriminate in the provision of goods and services if:
- The discrimination is based on the alleged discriminators' religious beliefs or conscience;
- The refusal to provide the goods or services was private and respectful; and
- The alleged victim can obtain the goods or services elsewhere with little difficulty.
The contrary view amounts to finding the legislature can have a legitimate aim of pursuing a goal (the protection of gay rights) regardless of the proportionality of the steps taken and the harm to the rights and freedoms of others.
Further problems with Ashers
As a decision on direct discrimination the decision seems plain wrong. The McArthurs would have treated a heterosexual campaigner for gay rights in exactly the same way if they had ordered the cake.
The Court sought to escape from this by relying on the concept of associative discrimination. The decision seems to be a flawed extension of the existing law on associative discrimination because the only real association between the victim and a gay person is in fact ideological – that they share the same views about gay rights.
Thus the real objection to the McArthurs' conduct was that they were discriminating on the grounds of belief and that is was what was found by the District Judge in the County Court. The NI Court of Appeal did not find it necessary to rule on this.
However, this simply raises the question of why the McArthurs should not be allowed to discriminate on the basis of Mr Lee's beliefs if this was required by their own beliefs. The regulations preventing discrimination on the grounds of religion or belief in Northern Ireland did not on their face allow this. But this simply raises the question of why an exception was not necessary in order to make the section compliant with Articles 9 and 10 of the European Convention on Human Rights.
As veteran gay rights campaigner Peter Tatchell has pointed out, this raises the question: should Muslim printers be obliged to publish cartoons of Mohammed? Or Jewish ones publish the words of a Holocaust denier? Or gay bakers accept orders for cakes with homophobic slurs?
We appear to be entering concerning territory where freedom of conscience is diminished and forced speech is compelled. As Daniel McArthur himself observed: "If equality law means people can be punished for politely refusing to support other people's causes then equality law needs to change."
As Christians we should expect that living faithfully will often bring persecution and challenge (see the above passages from Daniel and 1 Peter). However, we are also called to "Speak up for those who cannot speak for themselves" (Proverbs 31:8a). Therefore, as Christian lawyers in particular, it is imperative that we speak up on behalf of fellow brothers and sisters who face unfavourable treatment in their workplaces and advocate for their rights to live faithful Christian lives, free from the compulsion to promote views they do not agree with.
Pray. For the McArthurs and other Christians like them who are facing hard choices between being faithful to their conscience and complying with current legislation.
Social Media. Share comment pieces sympathetic to Ashers and freedom of speech on social media (many are available).
Contact your MP. Express your concern at the Ashers ruling to your local MP and ask what they are doing to protect the rights of freedom of religion and free speech.
 Gareth Lee v Colin McArthur, Karen McArthur & Ashers Baking Company Limited(Ref: MOR10086, 24 October 2016)
 The Equality Act (Sexual Orientation) Regulations (NI) 2006 and the Fair Employment and Treatment (NI) Order 1998.
 Bull v Hall  UKSC 73
 Eweida v United Kingdom (2013) 57 EHRR 8