Law & politics

Religious freedom v LGBT equality: ‘gay cake’ case

Dr Erica HowardThe long-awaited decision in the so-called ‘gay cake’ case has been issued today, with the Northern Ireland Court of Appeal confirming the County Court’s finding that Asher Baking Company directly discriminated against Gareth Lee on grounds of sexual orientation. Equality and discrimination law expert Dr Erica Howard gives her assessment of the verdict.

In May 2014, Gareth Lee ordered a cake with a colour picture of Bert and Ernie, two characters from the TV programme Sesame Street, which has become the logo for QueerSpace, with the slogan ‘Support Gay Marriage’. Two days later, the bakery, Ashers, told Mr Lee over the phone that they could not fulfil the order because the bakery was a “Christian business”. The bakery is a limited company with a number of shops and about 80 employees. After Asher’s refused to make the cake, Mr Lee got the cake made elsewhere in time for the event it was meant for. Mr Lee also launched a complaint of discrimination against the bakery company and its owners. He was assisted in his claim by the Equality Commission Northern Ireland.

The ‘gay cake’ at the centre of the case

Direct discrimination

In the County Court, the bakery argued that they were “entitled to refuse to supply services which could conflict with freedom of conscience or religious belief. Judge Brownlie accepted that the owners of the bakery company had rejected the cake because of their genuine and sincerely held belief that same-sex marriage should be opposed as it is contrary to God’s law. But, she rejected the argument that this belief entitled them to refuse supplying the cake requested. She found the bakery guilty of direct discrimination on the grounds of sexual orientation.

In today’s judgment, the Belfast Court of Appeal agreed with the judge in the County Court that the bakery company had directly discriminated against Mr Lee on the ground of sexual orientation. It rejected the argument that the bakery and its owners would have been endorsing gay marriage equality by baking the cake. It argued that Mr Lee received less favourable treatment than other people because of sexual orientation. The judges considered that:

“The benefit from the message or slogan on the cake could only accrue to gay or bisexual people. The appellants would not have objected to a cake carrying the message ‘Support Heterosexual Marriage’ or indeed ‘Support Marriage’.  We accept that it was the use of the word ‘Gay’ in the context of the message which prevented the order from being fulfilled. The reason that the order was cancelled was that the appellants would not provide a cake with a message supporting a right to marry for those of a particular sexual orientation. This was a case of association with the gay and bisexual community and the protected personal characteristic was the sexual orientation of that community.  Accordingly this was direct discrimination.”

Potential for abuse

The Court of Appeal also considered that “if businesses were free to choose what services to provide to the gay community on the basis of religious belief, the potential for arbitrary abuse would be substantial”. And, it suggested that “the supplier may provide a particular service to all or none but not to a selection of customers based on prohibited grounds”. So, the bakery “might elect not to provide a service that involves any religious or political message, but what they might not do is provide a service that only reflects their own political or religious message in relation to sexual orientation”.

Both the County Court and the Court of Appeal thus found that there had been direct discrimination contrary to the law. This is, in my view, based on a correct interpretation of the prohibition of direct discrimination laid down in Northern Ireland’s anti-discrimination laws and in the EU Directive against discrimination on the grounds of sexual orientation. Mr Lee was directly discriminated against and was treated less favourably than someone who wanted a message celebrating (heterosexual) marriage because of sexual orientation (Note that, in Northern Ireland, same-sex couples cannot get married).

Surprising criticism

For me, the outcome of the case is welcome, but what is surprising in the case is the way the Northern Ireland Equality Commission is criticised. The following passage comes from the summary of the judgment:

“In the course of the hearing concern was expressed about the role of the Equality Commission in the pursuit of this case. It was made clear to us that the Commission recognised its role in ensuring that all elements of Northern Ireland society participate in the commercial space. To that end we have been assured that the Commission is available to give advice and assistance to those such as the appellants who may find themselves in difficulties as a result of their deeply held religious beliefs. The only correspondence to the appellants that we have seen, however, did not include any offer of such assistance and may have created the impression that the Commission was not interested in assisting the faith community where issues of this sort arose. It should not have been beyond the capacity of the Commission to provide or arrange for the provision of advice to the appellants at an earlier stage and we would hope that such a course would be followed if a situation such as this were to arise in future.”

It is not clear what assistance they should have given in this case.

It is not clear what assistance the Equality Commission should have provided to the bakery and its owners. It seems to me that the Commission was of the view that the conduct by the bakery constituted direct discrimination against Mr Lee contrary to the Northern Ireland anti-discrimination regulations (a view that has now been confirmed by both the Northern Ireland County Court and the Court of Appeal). They could and should have informed the bakery and its owners of what, in their view, was the correct interpretation of the law (and maybe they did so, this is not clear from the case), but should they have provided further assistance when the bakery and its owners wanted to pursue an interpretation which was, in the Commission’s view, not a correct interpretation of the law? It is, of course, unfortunate if the impression was created that the Equality Commission was not interested in assisting the faith community in relation to these sorts of issues, but it is not clear what assistance they should have given in this case.

Social commentary

Top-down gentrification in Soho

The Baseline Collective, consisting of Middlesex lecturers Dr Magali Peyrefitte and Matt Ryalls, along with Dr Erin Sanders-McDonagh, is currently engaged in the Baseline Project – an attempt to document ongoing changes in the Soho district of London and understand the implications for people who live and work there.

It features a unique multi-sensory approach, involving urine, neon, sound and body mapping, to chart changes in the use of the space over time, alongside interviews with increasingly marginalised members of Soho society, as Dr Peyrefitte explains.

Soho - Photo by Magali PeyrefitteThe pace of change in Soho is hard to keep up with. The area is undeniably vibrant – attracting young professionals after work and tourists passing by into a growing number of cafes, bars and restaurants. This vibrancy marks Soho as symbolic of the 24-hour city, but these changes are also symptomatic of the neoliberal influences on the city. Historically, Soho has been home to gay clubs, music venues, sex shops, and brothels juxtaposed to form what Walkowitz in Nights Out – Life in Cosmopolitan London described as a ‘space of transgression’.

Soho - Photo by Magali PeyrefitteThe transgressive quality of Soho is becoming increasingly fragmented. A number of landmark venues such Madame Jojo’s (known by many as the home of cabaret and burlesque in Soho) have now been closed down and others are struggling to stay open. Neon lights continue to illuminate Soho, but they are nowadays more likely to ironically indicate the name of a restaurant or a bar than to signpost a strip club or a peep show. The contrast between the old neon lights of seedy Soho, and the new types of neon lighting used by hipster cafes and craft beer pubs becomes a visual sign of social change as a result of gentrification in the area.

Soho - Photo by Magali PeyrefitteWhile Soho may once have been a space of transgression, our research over the past 15 months suggests that the allure of Soho is increasingly more in line with other areas in London, where gentrification is altering the retail landscape and where dimly lit bars and restaurants catering for a more ‘hip’ clientele are now spreading. With these physical and aesthetic changes, the décor of gentrification is planted. This is also evidenced by an increase in the number of licences granted to the catering industry while there is a clamping down on licences for less socially desirable (and less morally respectable) sex shops and betting shops. Conversely, a number of commercial properties have been transformed into residential properties as private developers in concert with Westminster City Council are aiming to attract a wealthy population into the area.

Soho - Photo by Magali PeyrefitteRecently, Berwick Street Market has been the subject of some news coverage, with the media interestingly using the language of gentrification. Situated at the heart of Soho, the shrunken market is resisting the pressure of  Soho Estates, one of the main landlords which is redeveloping much of the area, including the space between Walker’s Court and Berwick Street where the market is located and has been operating for over 200 years. This traditional market has long catered for a local, often working-class population, selling fruits, household goods, fabric and flowers. The market is currently under threat as Westminster City Council is handing over its management to a private operator. In contrast,  30 metres away on Rupert Street, an area where strip clubs, massage parlours, and brothels used to dominate, a newly developed market in now booming, selling cosmopolitan, fusion street food in the places where seedier entertainment once flourished.

Soho - Photo by Magali PeyrefitteSoho - Photo by Magali PeyrefitteDuring the Baseline Project we have endeavoured to map the rapid changes happening in Soho using a unique combination of creative methods. We adopt a multi-sensory ethnographic approach to explore the area – looking at the ways in which sight, sound, smell, and touch are part of our experience of the city, and how changes in the area can be understood through our sensory reactions. We will, for example, map the neon lights of Soho, looking at how different venues use neon, and how long-established Soho residents and proprietors feel about the changes to the area. We are particularly interested in how gentrification is excluding certain marginalised groups (e.g. sex workers or social housing tenants) and we argue that Soho is becoming increasingly sanitised and shaping an artificial city. Ultimately we argue that what is happening in Soho is a very exclusionary form of gentrification that represents an exacerbated version of a neoliberal city.

For more, see Sanders-McDonagh, E. Peyrefitte, M. & Ryalls, M. (forthcoming) Sanitising the City: Exploring Hegemonic Gentrification in London’s Soho, Sociological Research Online.

All photos by Magali Peyrefitte.