The US Supreme court will soon delivered its verdict on a case involving a Christian baker with objections to same sex marriage. Followers of the Lee v Ashers Baking Co litigation may experience a sensation of déjà vu, but only up to a certain point. Although the facts of the cases were extremely similar, the courts came to radically different conclusions in resolving the clash of rights.
In short, both situations involved a refusal to produce a cake celebrating or promoting gay marriage. In the American case, the US Justice Department are supporting the baker, arguing that producing a cake is a creative act, and that an artist should not be compelled to use his talents to express a sentiment which conflicted with his religious beliefs. In contrast the appellate court in Northern Ireland took a more pragmatic stance. It ruled that a baker might be asked to ice a cake in the colours of a particular football team for a client, but that did not amount to expressing support for the team. By analogy, producing the cake promoting gay marriage could not be equated with expressing support for that institution.
The court in Lee was crystal clear that when it came to accepting orders for cakes with political or religious connotations, a commercial enterprise was not free to discriminate. It would have been perfectly acceptable for a baker to refuse all commissions with a political or religious dimension, but accepting some meant accepting all. There could be no scope to pick and choose, and agree to take orders from people expressing messages deemed to be desirable. The reasoning undoubtedly has a commendable clarity to it, and in a place where sectarian tensions still run high, it is easy to see the appeal of this approach.
On the other hand, if creating a cake is seen as an act of artistic expression, then it is possible to follow the logic of the argument being played out in the States. An artist might be said to put something of his or her own self into a creation, and forcing someone to put a piece of their soul into a message they find offensive does indeed appear oppressive.
However, if a person is seeking to make money from their art, the waters are undoubtedly muddied. Would it be acceptable, for example, for a photographer to claim a religious or political objection to interracial marriage, and refuse to do portrait photos for families who didn’t conform to his worldview? Should artistic freedom really be used as a shield for those wanting to discriminate on the basis of protected characteristics (gender, race, sexuality, disability etc)?
Also, where exactly are the boundaries of artistic expression? It might be asked whether there is a difference between producing a bespoke, handcrafted cake with sculpted icing, and scanning a computer image of Sesame Street’s Bert and Ernie onto a standard white square. Some bakers might be covered whilst others might not. And where and how could value judgements be made about the difference between artistic expression and providing a service. If someone running a bicycle repair shop feels that giving each individual bicycle tender loving care is an art, is it appropriate for a third party to declare that it is merely a mechanical process? The more that the artistic expression pathway is explored, the more problematic it seems.
This is not to say that the neutral, all or nothing, approach of the court in Northern Ireland is straightforward. For instance Peter Tatchell, the leading gay rights campaigner, unexpectedly expressed support for Ashers Bakery, on the basis of freedom of expression. Tatchell suggested that if the reasoning in the case were followed to its natural conclusion, then a Jewish printer would be obliged to produce a book denying the holocaust. In his view, individuals should not be compelled to express something repugnant to them.
Tatchell’s point certainly generates pause for thought. However, there are arguably more appropriate legal ways to deal with this kind of problem; in many instances, deeply offensive messages would fall foul of the law on hate speech (see further the Public Order Act 1986). But if a message does not amount to hate speech, then arguably freedom of expression demands that it should be granted a place in the public domain. If bakers, printers, graphic designers and others were allowed to reject work from individuals or groups whose beliefs they consider undesirable, then surely minority belief groups within society would potentially struggle to make their voice heard. On this basis, it might be argued that the approach of the court in Northern Ireland defends freedom of expression rather than crushing it.
In major Supreme Court case, Justice Dept. sides with baker who refused to make wedding cake for gay couple (Washington Post-07/09/17)
Lee v Ashers Baking Co-summary of judgment (NI Court of Appeal-24/10/16)
Ashers ‘gay cake’ verdict defeat for freedom of expression (Peter Tatchell Foundation-24/10/16)
Protected Characteristics (Equality and Human Rights Commission)