Support Gay Marriage Cake: Freedom of expression gives right not to supply

In November 2016 we reported on a case about a bakery in Northern Ireland who had turned down an order for a cake emblazoned with the message ‘Support Gay Marriage’. The bakery run by Evangelical Christians who disagreed with the message was found by the Irish court to have unlawfully refused to make the cake and ordered to pay the customer £500 compensation.

Now the Supreme Court in the UK has looked at the matter and found in favour of the bakery and the reasoning is interesting for all businesses.

In short, the bakery did not refuse to fulfil the order because of the sexual orientation of the person placing the order. There was therefore no discrimination on those grounds. The bakery had not refused the customer the service merely because of their religious beliefs. If they had done that would of course be an affront to human dignity.

But, said the court that is not what happened here and the judges were concerned that the purpose of anti-discrimination law is not extended beyond its intended scope.

Freedom of expression, as guaranteed by Article 10 of the European Convention on Human Rights, includes the right “not to express an opinion which one does not hold”. And that no one should be forced to have or express a political opinion in which he does not believe.

So while the bakers could not refuse to supply their goods to a customer because he was a gay man or supported gay marriage, that is quite different from obliging them to supply a cake iced with a message with which they profoundly disagreed.

The case has been watched with interest in various countries including the US where the Supreme Court came to a similar conclusion in a case concerning a Colorado baker.

This is not a defeat for the gay rights movement but a victory for freedom of expression. In the same vein a gay person cannot be obliged to provide goods bearing slogans with which they profoundly disagree and there are unfortunately likely to be far fewer of those orders just waiting to be placed.