Cakes, Faith & Law

28 Oct 2016

The authoritative judgement of Lord Chief Justice Morgan doesn’t record his verdict on Colin and Karen McArthur’s baking but we do know he thinks their appeal in the “Support Gay Marriage” cake case had the legal equivalent of a soggy bottom. 

I discussed the facts in my post on 29 May 2015 (available from my page on the website). Sadly there’s neither time nor space to delve into the interesting issues raised under Articles 9 and 10 of the ECHR (now looming large in the CJEU) or the constitutional issues raised by the Attorney General for Northern Ireland. Instead, I give you the Lord Chief Justice’s decisive remarks which elegantly encapsulate what this area of law is all about. He writes:

….The appellants’ approach is that their religious belief and political opinion concerning same sex relations and same sex marriage are being penalised because those with a contrary religious belief that same sex relations are not sinful and the contrary political opinion that supports same sex marriage are not being penalised and accordingly the appellants receive less favourable treatment.

How does the legislation treat a person who holds the contrary religious belief and political opinion to that of the appellants in the same circumstances? Those who refuse goods and services to those who accept same sex relations and support same sex marriage are treated by the legislation in the same manner as the appellants have been treated. They may not be treated the same by those holding opposing religious beliefs or political opinions but the legislation treats them all the same.

… The legislation prohibits the provision of discriminatory services on the ground of sexual orientation. The appellants are caught by the legislation because they are providing such discriminatory services. Anyone who applies a religious aspect or a political aspect to the provision of services may be caught by equality legislation, not because the legislation treats their religious belief or political opinion less favourably but because that person seeks to distinguish, on a basis that is prohibited, between those who will receive their service and those who will not…The answer is for the supplier of services to cease distinguishing, on prohibited grounds, between those who may or may not receive the service. Thus the supplier may provide the particular service to all or to none but not to a selection of customers based on prohibited grounds. In the present case the appellants might elect not to provide a service that involves any religious or political message. What they may not do is provide a service that only reflects their own political or religious belief in relation to sexual orientation.”