Britain 'Gay Cake' Ruling Shows the U.S. How to Defend Religious Freedom AND LGBT Rights
On Wednesday, Britain's Supreme Court unanimously ruled that Asher's Bakery had not discriminated against a gay man by refusing to bake a cake encouraging people to vote for same-sex marriage. Brenda Hale, president of the Supreme Court, defended anti-discrimination law and religious freedom and free speech, setting an important precedent that the U.S. Supreme Court should look to in similar cases.
"In reaching the conclusion that there was no discrimination on grounds of sexual orientation in this case, I do not seek to minimise or disparage the very real problem of discrimination against gay people," Hale wrote. "It is deeply humiliating, and an affront to human dignity, to deny someone a service because of that person's race, gender, disability, sexual orientation or any of the other protected personal characteristics."
"But that is not what happened in this case and it does the project of equal treatment no favours to seek to extend it beyond its proper scope," the Supreme Court president declared.
Laurence Wilkinson, legal counsel for Europe at Alliance Defending Freedom (ADF) International, paraphrased Hale's words: "She's saying, 'Guys, we can't be weaponizing equality law. It's here to protect freedom, not to weaponize it.'"
So frequently in debates about religious freedom and discrimination, LGBT activists accuse religious freedom supporters of pushing a "right to discriminate." Christian bakers, florists, and photographers cannot be allowed to refuse service to same-sex weddings because that would involve unlawful discrimination against LGBT people, these activists claim.
On the contrary, government cannot force an individual to speak in favor of a cause or event he or she disagrees with. The freedom of speech means the government cannot compel someone to speak against their own conscience.
The UK Supreme Court threaded the needle between these two arguments.
The case involved Asher's Bakery, owned and operated by Christians Daniel and Amy McArthur. In 2014, gay man Gareth Lee — who had bought cakes from the shop before — requested a cake with a picture of cartoon characters "Bert and Ernie," the QueerSpace logo, and the headline "Support Gay Marriage."
Amy McArthur took the order, knowing the shop would have to refuse it. In order to consider her objection and spare Lee any embarrassment, she said nothing until after the weekend, when she and her husband called Lee and explained that his order could not be fulfilled. The bakery then refunded Lee's money. Lee found another bakery to make the cake, but complained to the Equality Commission for Northern Ireland (ECNI).
Both the ECNI and two courts ruled that the McArthurs had engaged in discrimination against Lee on the basis of his sexual orientation. Four years later, the UK Supreme Court finally struck down this idea, without weakening anti-discrimination laws.