Freedom of Expression Takes the Cake: Reflections on the Judgment in Lee v. Ashers Baking Company

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Disclaimer: This blog post solely reflects the opinion of the authors and should not be taken to represent the general views of IPPR’s management team or those of fellow authors.

After the narrow defeat of a motion supporting marriage equality in the Northern Irish Assembly in 2014, Mr. Lee, a volunteer with the organization QueerSpace advocating for the LGBT community in Belfast, wanted to bring a cake to a private event commemorating this loss. At the Ashers Baking Company he ordered a cake with an image of the popular cartoon characters Bert and Ernie, as well as a message in icing reading “support gay marriage”. Initially the bakery accepted Mr. Lee’s order, but ultimately decided that they could not bake this cake as the message was deemed incompatible with the religious beliefs of the MacArthurs, the owners of the bakery, as they define marriage as strictly between a man and a woman. The bakery apologized and issued a refund to Mr. Lee. The Equality Commission of Northern Ireland (ECNI) and Mr. Lee filed a suit against the bakery in a district court, which sided with Mr. Lee on his claims of direct and indirect discrimination based on the protected characteristic of sexual orientation. The Court of Appeals upheld this judgment, and ruled that associative direct discrimination occurred based on the connection between the message on the cake and the perceived sexual orientation of Mr. Lee. However the Supreme Court decided in favor of Ashers Baking Company as compelling someone to express a political belief they do not subscribe to would violate the right to freedom of expression. A panel organized by the UCL Faculty of Laws on the 23rd of January discussed the potential ramifications of this decision.

The Supreme Court siding with Ashers Baking Company necessitates a move away from the protected characteristic of sexual orientation to the specifically in Northern Ireland protected characteristic of political opinion. This shift requires a decision to dissociate the message iced on the cake with members of the LBGT+ community, for the claimant argued that the bakers based on the message assumed the sexual orientation of their costumer and thus discriminated based on that assumed identity. Karon Monaghan, a barrister in the Matrix Chambers, supported this move as the claim of dissociability between the statement and the LGBT+ community is rather thin, and excludes the many heterosexual people supporting marriage equality as well as the LGBT+ people opposing marriage equality. Although it might seem likely that the bakery did explicitly refuse service due to sexual orientation, the MacArthurs explicitly claimed to not have known the customers’ orientation and based their decision to deny service solely on the production of the political message on the cake. This separation of the message on the cake and the identity of M. Lee shift the focus of the case on the freedom of expression rights of Ashers Baking Company.

The Supreme Court found that the Ashers Baking Company could not be compelled to express a political opinion that was not theirs, for it would violate their freedom of expression as codified in the European Convention of Human Rights. This creates the foundation for a legal principle of “discriminate the message, but not the messenger”. In this case the bakery could decline to create the message in support of marriage equality but would not have been allowed to deny service to Mr. Lee based on his sexual orientation. Colm O’Cinneide, professor of constitutional and human rights law at UCL, claims that this principle is not likely to stand up to scrutiny as future case law could problematize the undefined distinction between message and messenger.

The implications of this ruling will emerge in future cases, however there are some important potential outcomes to consider. The case treads in the murky waters of freedom of expression, in which courts do not concern themselves with the validity of held beliefs nor their content. This is important as it guarantees diversity of expression within communities, as for example within Christianity many support marriage equality while others oppose it. However, as Ronan McCrea, professor of constitutional and EU law at UCL, notes that as the case focuses on complicity in political messaging, LGBT+ people risk being reduced to political messages if any act of support would be construed as complicity in political messaging. Although non-discrimination law protects LGBT+ individuals, the avenue of political messages could create a window to legitimize discrimination. As such future cases would focus on a potential clash of rights – freedom of expression and freedom from discrimination – the lack of a hierarchy in human rights leaves uncertainty to how LGBT+ people and their rights might be jeopardized. Another important point brought forward by Christopher McCrudden, whom acted for the Ashers Baking Company in this case, is that the case disrupted a particular evangelical narrative that human rights were tools used against Christian communities. This is an important note, for it heightens the validity of human rights in communities who previously approached the courts and these rights with suspicion and assumed bias.

Within the LGBT+ community there is a fear of concession to any form legitimizing oppression, as liberation is still so new and incomplete. However Ronan McCrea claimed that there will always be a level of anti-LGBT+ sentiment due to the historicity of some of these essential cultural practices as marriage. This point is both historically disingenuous to the long cultural history of queerness, and logically flawed for enabling the usage of the past as justification for future practices. This statement could be interpreted as a suggestion how Lee v. Ashers Baking Company is establishing a new status quo. It would be naïve to claim that the outcome of this case would not affect the LGBT+ community, even though its judgment has shifted away from discrimination to freedom of expression. Within a societal shift along controversial and deep fault lines and a media landscape that can fail to translate the nuanced outcome of the case, the court decision will be read as a victory for those opposing LGBT+ people and their rights, potentially emboldening religious groups to push further. Although the outcomes of this case might not stand up to scrutiny in future cases, this decision and its public perception still play an important role how the LGBT+ community is viewed, and what kind of treatment is harmful yet permissible.

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