Icing, Not The Cake

In ‘Gay Cake’ case in UK, at stake is the right to free speech, and right not to speak.

Written by Chintan Chandrachud | Updated: May 24, 2018 12:03:10 am
IPC section 377, Supreme Court review of 377, same-sex criminalisation, homosexuality criminalisation law, LGBTQ, homosexuality, lesbian, gay, LGBTQ rights, indian penal code, indian law, indian express explained The case raises issues that will influence the future of free speech and anti-discrimination law in the UK and more widely in the Commonwealth. (File)

On May 1, the UK Supreme Court heard arguments in what has come to be known as the “gay cake” case. With the court sitting in Northern Ireland for the first time, the hearing assumed symbolic significance. More importantly, however, the case raises issues that will influence the future of free speech and anti-discrimination law in the UK and more widely in the Commonwealth.

Ashers Bakery offered a customised cake service, which enabled customers to provide pictures or graphics that would be iced on a cake. Gareth Lee, a member of an LGBT organisation in Northern Ireland, placed an order for a cake with a graphic that included the words “support gay marriage”. The bakery refused to fulfil the order on the basis that it was a “Christian business”. Lee claimed that in refusing to do so, the bakery discriminated against him on grounds of sexual orientation. He succeeded in both courts leading up to the Supreme Court, with the Court of Appeal deciding that if businesses were free to choose what services to provide to the gay community based on religious beliefs, “the potential for arbitrary abuse would be substantial”.

These decisions are disconcerting for a variety of reasons, and the UK Supreme Court must pause before upholding them. Anti-discrimination law is meant to protect people, not ideas or words. It was clear from this case that the bakery refused to fulfil Lee’s order based on the content of the message, not the identity of the customer. The bakery had served him in the past, and was willing to bake a cake without his chosen message. If a heterosexual person that supported gay marriage — of which there are of course many — requested the same message, the bakery would have refused. This indicates that there was no discrimination on the basis of the customer’s identity.

Speech cannot be compelled any more than it is suppressed. Requiring the bakery to produce the cake with Lee’s chosen message would effectively compel it to endorse a message with which it disagrees. The million-dollar question for the Supreme Court to consider is: Is this endorsement? People that see a cake with a certain message on it, in a box with the branding and other marketing paraphernalia of the bakery, might well conclude that the bakery endorses the message on the cake. The Court of Appeal disagreed, arguing that a baker that provides a cake with the logo of a sports team, or a Halloween cake, offers support for neither the team nor the festival. The problem with this reasoning is that the message requested by Lee was a political statement (especially in Northern Ireland where multiple attempts to introduce same-sex marriage have failed) unlike birthday cakes, sports cakes and Halloween cakes.

There are also powerful prudential reasons for the Supreme Court to overturn the decision that has been appealed. Of particular concern to anti-discrimination law are those cases where goods and services that are generally offered to the public are denied to some communities. The bakery did not turn away Lee — it merely refused provide a cake with a certain message on it. This case is therefore quite different to Masterpiece Cakeshop, the US Supreme Court’s recent “gay cake” case. Masterpiece Cakeshop refused to produce a wedding cake (with no specific message or text on it) for a gay wedding. That is discrimination that we should be worried about, because it is based on the identity of the customer and makes it difficult for communities outside of the mainstream to access services. Ashers Bakery does not fit this bill.

If the Supreme Court were to confirm the decision of the Court of Appeal, the consequences would be disconcerting. Since anti-discrimination law in the UK applies equally to disadvantaged groups (racial minorities, women, homosexuals) and dominant groups (white people, men, heterosexuals) a baker would have no choice but to produce a cake with any message falling short of hate speech. It is easy to come up with a catalogue of unpleasant examples. Many people — myself included — would not visit a bakery that refused to bake a cake with a message in support of gay marriage. However, as much as we disagree with what the bakery refuses to say, we must zealously defend its right to do so.

The writer is an associate at Quinn Emanuel Urquhart & Sullivan LLP, London. Views are personal.

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