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.
“We’re particularly pleased the Supreme Court emphatically accepted what we’ve said all along – we did not turn down this order because of the person who made it, but because of the message itself,” Daniel McArthur said on Wednesday, the BBC reported. “The judges have given a clear signal today. In fact it couldn’t be any clearer.”
“Family businesses like ours are free to focus on giving all their customers the best service they can — without being forced to promote other people’s campaigns,” McArthur concluded.
Interestingly, President Hale cited the U.S. Supreme Court case Masterpiece Cakeshop v. Colorado Civil Rights Commission (2018), involving baker Jack Phillips’ refusal to bake a cake celebrating a same-sex wedding. (The Court in that case ruled that the Colorado Civil Rights Commission did not give Phillips a fair hearing, but it did not defend Phillips’ free speech and religious freedom on the key issue in the case.)
“The important message from the Masterpiece Bakery case is that there is a clear distinction between refusing to produce a cake conveying a particular message, for any customer who wants such a cake, and refusing to produce a cake for the particular customer who wants it because of that customer’s characteristics,” Hale explained.
In both the Asher’s and Masterpiece cases, a baker refused to craft a specific cake not because of the sexual orientation of the person requesting the cake but because of the message that cake would represent.
“One can debate which side of the line particular factual scenarios fall,” Hale wrote. “But in our case there can be no doubt. The bakery would have refused to supply this particular cake to anyone, whatever their personal characteristics. So there was no discrimination on grounds of sexual orientation.”
The Asher’s case may have been uniquely clear, since it involved a cake with a message in icing. Even so, wedding cakes specifically crafted for same-sex weddings also bear a tacit message of approval for same-sex marriage, which also violates the religious beliefs of the McArthurs and Jack Phillips.
The key distinction, as Hale explained so well, is between refusing service to a person based on his or her characteristics and refusing a specific order because it would involve crafting a message with which the baker disagrees. Anti-discrimination law rightly forbids the former, but free speech protects the latter.
American law has stronger free speech protections than European law, but in this case the UK Supreme Court took a firmer stance in favor of free speech than the U.S. Supreme Court.
“They fully endorsed the compelled speech point,” ADF International lawyer Laurence Wilkinson told PJ Media. According to the U.S. Supreme Court, the First Amendment prohibits the government from compelling anyone to speak contrary to their personal views — thus prohibiting “compelled speech.” While UK law does not rely on the First Amendment, Hale cited articles 9 and 10 of the European Convention on Human Rights, which grant freedom of religion and freedom of expression.
Hale quoted Lord John Dyson that “nobody should be forced to have or express a political opinion in which he does not believe.”
Some argued that “because Lee was gay, he was not delivered that cake,” Wilkinson told PJ Media. “The court said that that’s rubbish, because if he was heterosexual he would have been denied that cake as well.”
Interestingly, the UK Supreme Court subtly mocked the Northern Ireland Court of Appeal, which acknowledged that Asher’s Bakery “would have also refused to supply a cake with the message requested to a heterosexual customer. The objection was to the message, not the messenger.” Even so, the appeals court ruled against the bakery.
Hale struck down the idea that the request for this “gay cake” had more to do with Lee’s sexual orientation, noting that support for same-sex marriage is not a proxy for homosexuality. “People of all sexual orientations, gay, straight or bi-sexual, can and do support gay marriage. Support for gay marriage is not a proxy for any sexual orientation,” she wrote. Therefore, refusing to bake this particular cake could not be considered discrimination.
Wilkinson, the ADF International lawyer, argued that the U.S. Supreme Court should reconsider cases like Masterpiece, applying the wisdom in Hale’s ruling.
“I think justices on the bench of the U.S. Supreme Court will be encouraged to go beyond finding an issue of whether the commission will have been hostile or not and look to the substance of the case, to protection against compelled speech,” Wilkinson told PJ Media.
“It’s obvious in this case, but in theory, the First Amendment should be stronger than the protection we have here in Europe,” the lawyer said. “This certainly sets the standard over here.”
“This is an incredible touchstone and anchor point going forward as well,” Wilkinson added. “I don’t anticipate seeing a case like this for a while.”
Wilkinson also expressed surprise that Asher’s was unanimous. “I expected it to be a close decision, and I expected a dissent or two. The court, at the end of the day, didn’t have any hesitation here.”
The lawyer also cited Peter Tatchell, a British pro-LGBT human rights campaigner, who praised the Asher’s ruling as a victory for all people. “This verdict is a victory for freedom of expression. As well as meaning that Ashers cannot be legally forced to aid the promotion of same-sex marriage, it also means that gay bakers cannot be compelled by law to decorate cakes with anti-gay marriage slogans,” Tatchell declared.
“Businesses can now lawfully refuse a customer’s request to emblazon a political message if they have a conscientious objection to it. This includes the right to refuse messages that are sexist, xenophobic or anti-gay, which is a good thing,” he explained. While he expressed his disagreement with the McArthurs’ position on marriage, he supported their freedom on the issue.
Importantly, the LGBT rights campaigner emphasized, “The ruling does not permit anyone to discriminate against LGBT people. Such discrimination rightly remains unlawful. Ashers did not discriminate against the customer, Gareth Lee, because he was gay. They objected to the message he wanted on the cake: Support gay marriage.”
“Discrimination against LGBT people is wrong,” Tatchell added. “But in a free society, people should be able to discriminate against ideas that they disagree with. I am glad the court upheld this important liberal principle.”
While the cake Jack Phillips refused to bake did not include an explicit message in icing supporting same-sex marriage, Phillips refused to bake a cake because that cake would celebrate a same-sex wedding. Like the McArthurs, he objected to the message his cake would send, not to the sexual orientation of the person requesting the cake. For this reason, the U.S. Supreme Court should look to the Asher’s decision for Masterpiece and other similar cases.
Hale demonstrated, beyond a shadow of a doubt, that it is possible to defend LGBT people’s rights against discrimination and the religious freedom and free speech rights of people like Daniel and Amy McArthur and Jack Phillips. Furthermore, Britain has effectively shamed the U.S. by getting this important free speech situation right before America did. Now the U.S. Supreme Court needs to take the hint.
Follow the author of this article on Twitter at @Tyler2ONeil.