Northern Ireland is now duly surrounded by marriage equality, and is the last bastion of marriage inequality anywhere on these islands. In England and Wales the Marriage (Same Sex Couples) Act 2013 and Marriage and Civil Partnership (Scotland) Act 2014 legislated for same sex marriage and commenced last year. The moving and resounding vote for marriage equality in last Friday’s referendum in the rest of Ireland, the highest turnout in the history of the state and a 62% majority, means the Irish constitution explicitly recognises marriage equality and legislation is now to be brought forward within weeks. The trade union movement have now organised a march rally for marriage equality on Saturday 13 June in Belfast.
The referendum took place in the same week as the County Court in Northern Ireland ruled in Gareth Lee v Ashers Bakery,  NICty 2 finding the bakery had discriminated against Mr Lee on grounds of sexual orientation for cancelling a cake he had ordered on the grounds he wanted a message supporting marriage equality on it, which the defendants argued conflicted with their Christian convictions. The court held that the defendants were unable to rely on Article 9 ECHR, in relation to their freedom to manifest religion, as Article 9(2) permits lawful and proportionate limitations on such manifestations when pursuing specified legitimate objectives, in this instance:
The protection of the rights and freedoms of others. As in all anti-discriminatory laws introduced over the years to prohibit discrimination against a minority group in society because of the beliefs of a majority group on the basis of a protected characteristic – sex, race, religious beliefs, political opinion and sexual orientation (paragraph 76 of judgment).
The circumstances whereby Article 9, or indeed the interrelated provisions of Articles 10 (freedom of expression) and Article 11 (freedom of assembly and association) permits and requires limitations to protect the ‘rights of others’ have been discussed in the context of posts on regulating parading – see The Haass / O’Sullivan Proposed Agreement on parades and flags: analysis from a human rights perspective and the earlier ‘Sectarian/racist expression and restricting parades to protect the rights of others: implications of Vona v Hungary’
The defendants have now stated that they intend to appeal the ruling. Meanwhile several popular arguments have been gaining some traction in media discourse since the judgment, which deserve rebuttals. The first is that Christians are now a persecuted minority in NI. This simply does not stand up and is dealt with extensively in the recent Equality Coalition submission to the DUP’s ‘conscience clause’ consultation. The ‘conscience clause’ which proposes re-legalising certain forms of discrimination on grounds of sexual orientation when done on the basis of any ‘strongly held religious convictions’ is drafted so broadly that a major shareholder in a property development company would be able to adopt a policy banning LGB couples from renting their flats. Their staff, including LGBT staff, would then have to implement this policy. The proposed Private Members Bill may now well be revived in the context of the ruling, but has no chance of getting through the Assembly as both nationalist parties have stated they will table a ‘petition of concern’ to require cross community support for the clause, which consequently would not pass.
The another type of argument are variations on the idea that the Ashers ruling means a person of religious faith now has to do anything a customer asks for. One caller to a radio programme claimed Jewish and Muslim butchers will now have to sell pork not to ‘discriminate’ against their customers. This is silly, nothing can be read into the judgement to oblige shops to provide customers with products they don’t actually stock or a service they don’t provide. Another variation is the misconstrued absolutist ‘freedom of speech’ argument that persons will now have to produce cakes with any message on. However freedom of expression is not an absolute and racist, sectarian and homophobic discourse in particular can and should be (and is) regulated. Although domestic incitement to hatred legislation could be better drafted, it does outlaw acts intended or likely to stir up hatred and arouse fear on racial, religious, homophobic or disablist grounds.
Another variation on this was provided by the satirist Ian Hislop, on the BBC’s Have I Got News for You, broadcast coincidentally on the same day as the referendum. He claimed that the judgment meant that a ‘Muslim baker’ would now have to oblige a customer who wanted a picture of the Prophet Mohammed on it. This particular example is also put forward in a piece on the UK human rights blog entitled ‘Conscience and Cake.’ There are however a number of reasons why this example is different from the Ashers case:
What recognised discrimination ground are we referring too? Firstly if a customer is refused an image of the prophet on their cake, on what grounds have they been discriminated against? In Ashers the court held Mr Lee had been discriminated against as he was gay or would be perceived to be or associate with persons who are. Discrimination on grounds of sexual orientation is unlawful under the Equality Act (Sexual Orientation) Regulations (Northern Ireland) 2006 – other grounds covered by legislation include of gender, age, religion, ethnicity, disability… yet none of these apply in the prophet cake scenario. The context is that services are refused or restricted (the latter is the case in relation to cakes and B&Bs, where owners have usually been willing to provide some but not all services to LGB persons) on a recognized discrimination ground.
In Ashers it was also held Mr Lee had also been discriminated against on grounds of political opinion contrary to FETO, given the different views on marriage equality. It would appear more of a stretch to argue that wanting an image of the prophet produced in itself is a political opinion, and this ground does not exist in England where Mr Hislop makes his jokes.
What image of the prophet are we referring to? Given as there is no authentic visual tradition of depicting the prophet, what image are we referring to? Many of the controversial images produced in Europe in recent years have been little more than racist caricatures, demonising, for example, Muslims in general as ‘terrorists’. This at a contextual time and place when Muslims find themselves marginalised and facing varying degrees of prejudice, discrimination and hostility. Limits on free expression increasingly accommodate such contextual analysis, and would include examining the question of motivation and the context of power (see earlier blog posts for such a framework grounded in the UN Rabat Programme of Action on preventing advocacy of hatred and hostility). In Ashers the cake was wanted for an LGBT rights event, in a jurisdiction where LGBT persons are marginalised and Christians are dominant. The contextual power, vulnerability and hence ‘rights of others’ dynamic is reversed in the ‘Prophet Cake’ scenario. Even if wanting such an image produced could qualify as a ‘political opinion’ in anti-discrimination law, there are competing legislative obligations that would have to be dealt with. Bakers could seek to protect themselves by having non-discriminatory policies which involve them not producing images which can incite discrimination or prejudice on recognised discrimination grounds.
What ‘Muslim baker’ are we referring to? There is clearly such a thing as a baker who is a Muslim (or Christian, and/or gay or lesbian, etc). Yet can we have a ‘Muslim baker’? In Ashers it was held that the high street chain was not a ‘Christian Business’ but rather a commercial business, the same applies for an ‘Islamic business’. Ashers or any other bakery cannot require staff to be persons of strong Christian convictions, as this would constitute unlawful discrimination on grounds of religious belief.
This is one reason why it is important that the law continues to prevent service providers from discriminating on grounds such as sexual orientation, rather than as envisaged in the conscience clause, owners and managers of a business being able to instruct employees, including LGBT employees, to discriminate on such grounds. The judgment records that Ashers themselves have said that they identify only a small minority of their staff as Christians (around 10 of 62).
Some of the post-Ashers arguments are going to be daft, others are more complex, and we are likely to hear plenty of them.