Two years ago a family-run bakers in Northern Ireland called ‘Ashers’ refused to make a cake iced with the slogan “Support Gay Marriage”. The order was placed at its Belfast shop by gay rights activist Gareth Lee. The firm justified its refusal to bake what has since been called the “gay cake”, by reference to their family’s strong Christian religious views – and promptly found themselves in court. This case follows on from a previous one in which the Christian owners of a guest house were prosecuted for refusing to let a room to a gay couple.
The scene was thus set for what has been portrayed in the popular press as a confrontation between secular and religious freedoms. Gareth Lee complained at being discriminated against, and Ashers were successfully prosecuted under equality legislation for unlawful discrimination, fined £500, and just recently lost their appeal against that verdict. Daniel McArthur from Ashers expressed his disappointment at this outcome, adding that “If equality law means people can be punished for politely refusing to support other people’s causes then equality law needs to change.”
I have mixed feelings about this result. When you look at conflicts in which religious and secular freedoms are being fought out – most notably in Iraq and Syria – where medieval barbarism is being meted out to those who don’t conform to a particular set of beliefs, then a Christian bloke being taken to court by a gay bloke over the wording of an iced inscription on a cake seems trivial beyond belief. That said, I’d bet that either of the protagonists in this case would probably slam their fists angrily on the table and say “It’s the principle of the thing!”
Now, principles are important, but when people insist on standing on them two things happen: the principles get squashed and in the process more heat is generated than light. So let’s just try to unpack some of this and see what principles are engaged – and in the process, hopefully, generate some light!
The right freely to contract, or refuse to contract, with others for the provision of labour, goods or services is fundamental to the operation of a free-market economy, and, I would argue, to a free society. It follows that the state should act to limit this freedom only sparingly. One of the areas in which the state has acted to do so is equality legislation. The justification reads something like this: where a whole category of persons is subject to discrimination arising out of prejudice, and as a result suffer economic or social disadvantage, then this represents a form of market failure and the state is justified in stepping in to correct it.
We’ve had equality legislation ever since the Equal Pay Act 1970. This Act sought to end the situation where it was seen as okay for women to be paid less than men in the workplace for the same or similar work – a form of discrimination on the basis of gender which seriously disadvantaged women economically. Insofar as equality law has impinged on employment law, it is the rights of the seller (the worker who is ‘selling’ their labour) that is protected. But the scope of equality legislation has grown considerably over the past forty years and increasingly covers the provision of goods and services where it is the rights of the buyer (customer) that are protected; equality is enshrined as a societal value not just in law, but in public policy, so the concept of legal and policy protection of minority rights is hardly novel, nor is it restricted to the UK. Equal rights and protection of minorities from discrimination is enshrined in European law too, and is part of what a country has to demonstrate if it wants to join the EU.
In the UK, all sorts of ‘categories of person’ have had both protections and remedies extended to them under a bewildering range of legislation. All this was tidied up in the Equality Act 2010 which defined nine personal characteristics, including ‘sexual orientation’ and ‘religion and similar belief’ which were subject to legal protection and which have thus been termed ‘protected characteristics’.
The crucial thing for people working in licensed retail and hospitality, or any environment in which they are selling goods or services to the public, is to understand that in this context the Equality Act 2010 does not seek to protect the rights of buyers and sellers equally. It doesn’t seek to establish a balance between buyers and sellers where they both happen to have a ‘protected characteristic’. It seeks to provide a protection or a remedy only for the buyer. So, as in the “gay cake” case, where the buyer is gay and the seller is a person of strong religious conviction, and refuses to contract with the buyer, it is the buyer’s protected characteristic that is engaged by the legislation; the seller’s protected characteristic is, in this context, irrelevant.
Does this mean that the secular rights of a gay person will always trump those of a person of religious belief? Well, if you think so, then reverse the buyer-seller roles: imagine the buyer is someone campaigning against gay marriage and he wants a cake iced with the words “Oppose gay marriage”, and the cake-maker, who is gay, refuses to provide this service. In this scenario it is the religious person’s protected characteristic that is engaged because he’s the buyer; the gay person’s protected characteristic is irrelevant to the transaction because he’s the seller. Insofar as the Equality Act 2010 impinges on the right to contract, or refuse to contract with others for the provision of goods or services, it is essentially a piece of consumer protection legislation, nothing more.
For some libertarians, the “gay cake” case demonstrates a bullying state interfering with people’s right to freely associate, and anyway the harm, in this case, is trivial. I think the important thing to remember is that in a complex society where people often stridently assert their rights – whether they be religious or secular – a semblance of harmony can only be maintained if people accept that their rights are limited, not absolute.
This point was made by the judge in respect of the Christian guest house whose owners refused to rent a room to a gay couple. The judge confirmed that the guest house owners were sincere in their religious beliefs, and that they were entitled to manifest those beliefs in the way in which they lived their everyday lives, and there were many ways in which they might seek to do so that were perfectly lawful. But there was a crucial caveat: their right to do so was not absolute, it was limited, and they were not entitled to do so in a way that was unlawful because it involved discrimination against a buyer with a different protected characteristic to theirs.
Put simply: when you’re offering goods or services for sale to the public you have to be mindful of their rights even if that means accepting limits to your own – because you’re the seller, not the buyer. You can’t have your cake and eat it.
Paul Chase is director of CPL Training and a leading commentator on alcohol and health policy