My late father was a pottery maker, and very good at it. Question is, if a Northern Protestant had come to his studio to request that he produce a teaset decorated with the legend: ‘Taigs Out of Ulster!’ or ‘Kick the Pope!’ perhaps with decoration to match, would my daddy have been obliged to oblige him on the basis that he was offering to make ceramics for all comers, regardless of their religious persuasion? Would the production of Protestant ceramics have been part of his offer to the teaset-buying community? Or could he have declined on the basis that this was offensive to his beliefs as a non-practising Roman Catholic?
I am sorry to say that my daddy would almost certainly have produced the teaset, with imaginative anti-papist flourishes, taken the man’s money, and been glad to get it. He would have flourished his bundle of Protestant tenners and told the story in every social gathering he attended. But should he have been obliged to? If he had been a more upright RC and told the client to keep his anti-papist cash, would that have compromised his right to trade, on the basis that ‘A Refusal Often Offends’? I think not, myself. The production of cups, saucers and plates would have been an impartial matter – turning down a customer on the basis of his religion would be wrong, as well as against every commercial instinct my daddy possessed. But the decoration, the legend: why, that is no mere mechanical matter. You are not an automaton when you write a slogan on your products; you engage with it.
That was pretty well the situation of Ashers Bakery in Northern Ireland. A customer with whom it did business requested a cake bearing the icing: ‘Support Gay Marriage’. The proprietors declined on the basis this was against their beliefs. Ashers was very happy to provide the customer, one Gareth Lee, a cake of almost any description. It just drew the line at icing propaganda in support of something they regarded as against the law of God.
Mr Lee was outraged, and took the case to court with the support – of course – of the Northern Ireland Equality Commission. The Court ruled that Ashers were within their rights. However, the Northern Ireland Court of Appeal has upheld Mr Lee’s complaint. Now the case has gone to the Supreme Court, sitting for the first time in Belfast. The McArthurs' barrister, Danny Scoffield, told the court:
"Mr and Mrs McArthur have been penalised by the state, in the form of the judgment at the county court, for failing through their family company to create and provide a product bearing an explicit slogan 'Support Gay Marriage' to which they have a genuine objection in conscience. They would equally have refused to provide that cake with the slogan to a heterosexual customer. Their difficulty was the content of the cake, not the characteristic of the customer."
Precisely, it wasn't about discriminating against a gay customer; it was about balking at promulgating cake-based propaganda. It's worth recalling what Mr McArthur said first time around:
‘If equality law means being punished for not supporting other people’s causes then equality law has to change. This was never about the customer, it was about the message…We wouldn’t decorate a cake with a pornographic picture or a spiteful message.’
Indeed he said he wouldn’t ice a cake with disobliging remarks about homosexuals either. Right. So if a liberal-minded customer wants to have a cake decorated with an obscene message, must the McArthurs be obliged to provide it, on the basis that they are out there providing a cake making service to all comers? Or does the icing-based provision of propaganda or the subversion of public morals in the case of the pornography come outside their cake making remit? Michael Wardlow from NI Equality Commission – whose funding I think we should know more about – has observed:
‘Ashers now know that if they make an offer for cakes their offer is unqualified. Gareth had the right to have his offer met.’
Really? He had the right to cake, certainly. To a nice cake, a good cake. But to gay marriage propaganda in icing? That is another matter. Having your cake and eating it is one thing; how it is decorated can be a matter of conscience.
This is an updated version of Melanie McDonagh's Coffee House post from October 2016