No, I am very sorry to disappoint you, this is not a piece about the BBC’s (soon to be Channel 4’s) programme about baking cakes for village fetes. It is even more serious than that (hard to believe, I know).
I held off commenting on the decision of the Northern Irish Court of Appeal that those who bake cakes must be prepared to ice them with inscriptions supporting gay marriage or face hefty fines. I thought it only right that I should read the judgment first.
I am glad I didn’t let off both barrels at once before studying the judgment. I say that because I had, quite wrongly as it turns out, assumed that the judges must have twisted the law in order to favour their own political opposition to free expression.
I am getting ahead of myself. What were the facts?
A supporter of gay marriage (which is still not permitted in Northern Ireland but is the subject of constant debate) asked a baker to make a cake which would have an inscription demanding support for gay marriage. One of the baker’s assistants accepted the commission. His employers, however, were not happy. They had profound religious objections to gay marriage. They contacted their customer and, very politely, declined to provide the cake. They repaid the fee. The customer went elsewhere and, for no higher fee, got his cake. There probably would have been a valid claim for breach of contract, but it would have led to no more than nominal damages because the customer was not out of pocket. But the customer was frightfully cross. He wanted his pound of flesh.
Civil proceedings were issued for damages for discrimination. They succeeded. A district judge held that the baker had been required to advance the cause of gay marriage because to refuse to do so would amount to direct discrimination on the grounds of sexual orientation.
The baker appealed to the Court of Appeal. That court upheld the district judge’s decision. The law was clear. Though there had to be a balancing exercise between the right of the baker to hold genuine religious objections to gay marriage (still not permitted by Northern Irish law), his rights were subservient to those of the customer because he was homosexual and discrimination against homosexuals always trumped religious belief. The deputy president of the Supreme Court (Lady Hale) had made that clear in a previous case.
The Attorney General intervened in the case to advance the argument that, if the district judge had been right in her construction of the regulations, they were ultra vires because they amounted to improper discrimination against the baker on political grounds: the law of Northern Irleand did not permit statutory provisions which required people to advance political opinions with which they did not agree. The court rejected the Attorney General’s submissions and held that requiring the baker to inscribe a cake with a slogan in support of gay marriage did not amount to requiring him to support gay marriage.
I think it fair to say that the Court of Appeal could have come to a different conclusion. The arguments advanced on behalf of the baker were compelling. But so were those advanced on behalf of the customer. In particular, the customer was able to rely on Lady Hale’s assertion that religious beliefs, however genuine they might be, could never be permitted to override the state’s interest in protecting homosexuals from discrimination.
The baker is said to have decided not to appeal to the Supreme Court. That is probably a sensible decision. That court has shown very little love of free expression in recent years, and it would be highly unlikely, ever, to hold that religious beliefs are of more than marginal interest in cases such as this one.
Much as I would love to, I can’t say the Northern Irish Court of Appeal was motivated by tiresome North London Socialism. It considered the wording of the regulations and Lady Hale’s observations and concluded it was bound to find in favour of the customer and against common sense and the baker.
But that really shouldn’t (though it will be) the end of the matter. Why should we be saddled with such appalling laws? Stand back from all the legal arguments and look at the facts of this case. The customer was eager to advance his argument for gay marriage. That was fine. It was his right. He obviously knew that the majority political opinion in Northern Ireland disagreed with him. When the baker refused to inscribe his slogan on the cake he can’t have been surprised. Fortunately for him, he found another baker who was prepared to do the job. He suffered no loss at all. Is it not completely barmy that the law held that he should then be given £500 by the first baker? Of course it is.