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Victorious sponge. When competing freedoms clashed in a bakery

October 10th, 2018

George Bernard Shaw is one of those writers, like Spenser, Milton and Dr Johnson, who is now much less read than known.  Nowadays all that most people know of him is My Fair Lady (ironically, he refused permission in his lifetime to allow Pygmalion to be adapted into a musical) and the odd quotation.  One of those quotations came to mind this morning: “The reasonable man adapts himself to the world: the unreasonable one persists in trying to adapt the world to himself. Therefore all progress depends on the unreasonable man.” 

Most people, if someone asked them to make something with a message that they disapproved of on moral grounds, would inwardly sigh and do it if it was within the bounds of normal public debate.  Most people, if they asked for something to be made with a message and met with a refusal on the ground that they were opposed to that message, would inwardly sigh and simply go elsewhere.

This morning we had the Supreme Court decision in Lee v Asher’s Baking Company, a case that came about only because of one unreasonable company and one unreasonable man.  Mr Lee wanted a cake iced with a picture of Bert and Ernie from Sesame Street and the message “Support Gay Marriage”.  The Baptist owners of the bakery after anxious consideration decided that they could not produce such an immoral consumable good.  Battle lines were drawn and a legal showdown has ensued.

There is to be no doubting the sincerity on either side.  Mr Lee was a stalwart of an organisation called QueerSpace.  Asher’s is named after a Biblical reference (“Bread from Asher shall be rich, and he shall provide royal dainties” – Genesis 49:20).  We see a very 21st century Northern Irish collision of values.

Neither side was prepared to back down, so in what must be a legal first on this side of the Atlantic, the Supreme Court has been asked to set legal boundaries for freedom of conscience in relation to marzipan, fondant and cochineal.  Like Asher’s cakes, the Supreme Court have risen to the challenge, opining on the use of ganache with panache.

The jokes write themselves but there is an important point (which is why the Supreme Court took the case – it only takes cases of national significance).  Both religious freedom and sexuality are protected characteristics.  What happens when they collide?

In the end, the Supreme Court sidestepped the problem.  It found (questionably, given the findings of the court of first instance, which had found that the bakery had assumed that Mr Lee was gay) that the bakery had not treated him differently because he was gay.  So the question was whether this was discrimination by association.

It firmly concluded that it was not.  Its rationale is most clearly expressed in the postscript, where the Supreme Court discussed its US namesake’s finding in a case where a bakery had refused to supply a wedding cake for a gay couple:

“The important message from the Masterpiece Bakery case is that there is a clear distinction between refusing to produce a cake conveying a particular message, for any customer who wants such a cake, and refusing to produce a cake for the particular customer who wants it because of that customer’s characteristics. One can debate which side of the line particular factual scenarios fall. But in our case there can be no doubt. The bakery would have refused to supply this particular cake to anyone, whatever their personal characteristics. So there was no discrimination on grounds of sexual orientation.”

So the matter is now acte éclair.  Freedom of speech does not entitle one to demand a platform, even if that platform is made of cream and sugar rather than printing ink.  And that, for the devout Baptists of Northern Ireland, must be the icing on the cake.

Alastair Meeks