As was discussed in a recent issue of the Standard Bearer, the United States Supreme Court recently ruled that the Colorado Civil Rights Commission was incorrect in finding a baker violated the civil rights of a gay couple by refusing to bake them a cake celebrating their same-sex marriage.1 The Supreme Court of the United Kingdom (UK) has now issued a ruling in a similar case, Lee v. Ashers Baking Company.2 Although the facts of the two cases are similar, the courts used very different approaches in reaching the same ultimate outcome.
The reasoning used by the Court in the Ashers Baking case is worthy of closer examination. The facts of the Ashers Baking case are as follows. Daniel and Amy McArthur, who operate the bakery, are evangelical Christians and the bakery is a family business. The name of the bakery itself is derived from the biblical reference in Genesis 49:20, where Jacob was addressing his sons and stated that “Out of Asher his bread shall be fat, and he shall yield royal dainties.” Gareth Lee, a homosexual activist, requested that the bakery make a cake with the characters Ernie and Bert from the children’s show Sesame Street and the words “Support Gay Marriage.” The bakers refused to make the cake, saying that could not because of their religious beliefs.
The owners of the bakery were alleged to have violated Mr. Lee’s rights under the Fair Employment and Treatment Order (FETO), and the Equality Act (Sexual Orientation) Regulations (SOR). These laws prohibit discrimination based on sexual orientation or on political or religious beliefs. The County Court found that the bakery had violated these provisions and fined them £500 (about 650 U.S. dollars). In some cases involving claims of religious right of conscience, the court weighs the protections against discrimination found in the FETO and SOR against the protections of freedom of religion and freedom of expression provided to religious individuals under Articles 9 and 10 of the European Convention on Human Rights (ECHR). In the Ashers case, the court found that the bakery had engaged in direct discrimination, and that it therefore did not have to consider the baker’s religious beliefs. The McArthurs appealed to the Northern Ireland Court of Appeal, which also agreed that the case involved direct discrimination based on sexual orientation and that it therefore did not need to consider the McArthurs’ beliefs. The McArthurs then appealed the decision of the Northern Ireland Court of Appeal to the UK Supreme Court.
Before we consider the decision of the UK Supreme Court, we will take a moment to compare the legal framework of the Ashers case to the Masterpiece Cakeshop case recently decided by the U.S. Supreme Court.3 Both cases involved alleged violations of civil rights legislation. In this type of case, a complaint is made by an individual who claims they have been discriminated against. The cases are civil cases, meaning that there is no criminal penalty such as a prison sentence, but a party found to be in violation can be subject to monetary penalties and fines, as well as being ordered to desist from future violations. However, the source of protection for a party claiming religious right of conscience is different in the United States than in the United Kingdom.
In the United States, freedom of speech and freedom of religion are guaranteed by the First Amendment to the Constitution. The First Amendment is part of the Bill of Rights that was adopted shortly after ratification of the Constitution itself. These rights are incorporated into the foundational legal framework of the nation itself and, therefore, freedom of speech and freedom of religion are considered to be more firmly protected in the United States than anywhere else in the world.
In places such as the United Kingdom, on the other hand, these rights are protected by legislative action such as adoption of the provisions of the European Convention on Human Rights, as referenced above. The Convention is a pronouncement of certain ideals or rights, which are in turn adopted by the various individual governments. One would therefore anticipate that freedom of religion and freedom of speech would be more jealously guarded in the United States. A comparison of the Ashers ruling to the Masterpiece Cakeshop ruling reveals that this is not necessarily so.
The bakers in both cases claimed protection under both freedom of speech and freedom of religion. As we saw when we reviewed the Masterpiece Cakeshop ruling, instead of making a determination based on these rights, the U.S. Supreme Court focused on the actions of the state civil rights commission, which were deemed hostile towards the baker’s religion. While rightly denouncing hostility towards religious beliefs, the ruling left open the question of what the outcome would be if those prosecuting an alleged civil rights violation did not openly show hostility. In other words, the U.S. Supreme Court did not answer the question of whether the much-vaunted U.S. rights of freedom of religion and freedom of speech would protect someone who, in good conscience, could not provide a service proclaiming a pro-homosexual message.
The UK Supreme Court, on the other hand, engaged in a very thoughtful analysis and came to the conclusion that there was no discrimination based on the sexual orientation of the individual seeking the service, but that the McArthurs’ objection was to the message they were asked to create. Mr. Lee had purchased other cakes from them before, and they had not refused him service. Presumably, if a heterosexual had requested the same cake with the “Support Gay Marriage” message, the Ashers Bakery would have still refused to create the cake. Therefore, in the reasoning of the court, the only discrimination was to the message, not the person requesting it.
Since there was no direct discrimination, the Court then examined the McArthurs’ religious beliefs. The UK Supreme Court had noted the McArthurs’ unequivocal religious position from the outset, stating their beliefs as follows:
(a) the only form of full sexual expression which is consistent with biblical teaching (and therefore acceptable to God) is that between a man and a woman within marriage; and
(b) the only form of marriage consistent with biblical teaching (and therefore acceptable to God) is that between a man and a woman.
The court went on to find that these beliefs motivated the McArthurs and provided the basis for their refusal to create the desired cake. It is interesting to note that the UK Supreme Court was unanimous in its decision, with all five justices finding for the McArthurs.
Looking at the facts of the two cases, it appears that the U.S. Supreme Court could also have distinguished discrimination against the message from discrimination against the individual requesting the message. In the United States, however, the focus is more on the effect of the alleged discrimination, and whether a “class” of people is denied access to goods or services. The U.S. Supreme Court will most likely still need to face the question of whether freedom of speech and freedom of religion do allow someone to exercise the right of conscience and refuse to participate in sending a message or celebrating an event that violates their sincerely held religious beliefs. The recent changes in personnel on the U.S. Supreme Court might make it more plausible that a decision would come down similarly to the Ashers ruling in the United Kingdom. In the United Kingdom, given the nature of the protection of freedom of religion and freedom of expression, a change could be legislated that swings the pendulum against these rights. We have the assurance that whatever legal changes occur, all history unfolds in accordance with our heavenly Father’s will.
When we deal as Christians with cases such as these we must always be careful to make sure that the case is framed in such a way that the true issue is revealed. The world wants to frame the issue as Christians discriminating against homosexuals or other who walk in sin because of some irrational hatred of the individuals themselves; but the true issue is not a bias or hatred by Christians against other people. The true issue is that Christians condemn sins such as homosexuality, refuse to support or condone those sins, and desire that those who walk in such sins repent. The world hates Christians for their disapproval of those sins and demands acceptance instead. When we speak of these issues or when we are charged with violations of civil rights, it is important to make it clear that we are merely standing on our beliefs as taught in Scripture, and that any form of legal prosecution is actually persecution for those beliefs. It is important that we leave no doubt as to our actual beliefs, and the biblical basis for those beliefs. When we do so, the world is exposed in its hatred for God’s truth and for Christ Himself.
1 Brian K. Van Engen, “The Other Side of the Coin (2),” Standard Bearer, Vol. 95 No. 1, October 1, 2018, 19-20.
2 Lee v Ashers Baking Company Ltd & Ors (Northern Ireland)  UKSC 49 (10 October 2018), United Kingdom Supreme Court.
3 Masterpiece Cakeshop v.Colorado Civil Rights Commission, 584 U.S. ___ (2018)