Judge makes very sensible ruling in gay cake case

The landmark victory for civil liberties today indicates a halt – or, more likely, a pause – in our courts’ apparently one-directional slide towards legal activism.

In a reassuring display of common sense the UK Supreme Court has ruled in favour of a Christian couple who found themselves at the heart of a high-profile discrimination case after refusing to bake a cake bearing the message “Support Gay Marriage.”

The McArthurs of County Antrim, Northern Ireland, own six bakery shops throughout the province. They received a request in 2014 for the cake in question from the organisers of the International Day Against Homophobia and Transphobia, held in Bangor Castle Town Hall, County Down.

After declining the order and offering a refund, the McArthurs were sued by the customers and the Equality Commission for operating a homophobic policy akin to refusing a service on racial grounds. Counsel for the McArthurs, however, insisted that this accusation is wrong – their objection was to the wording of the slogan, not the orientation of the customers, they claimed. After losing both locally and in the Court of Appeal the McArthurs took their case to the Supreme Court.

Surprising as it is that it took the highest court in the land to make this distinction, it was only at the final level of appeal that the bench found a total absence of direct discrimination against Lee, the customer, as a person. “The objection was to the message on the cake, not any personal characteristics of the messenger”, said the judgment. It goes on to conclude that “there was no discrimination on grounds of sexual orientation in this case.”

The court also concluded that Lee hadn’t been discriminated against on grounds of political belief (a protected category in Northern Ireland). Finally, the court ruled that the McArthurs’ rights to religious freedom under the European Convention on Human Rights were also brought into play. Lady Hale reminded the court that these rights “include the right not to be obliged to manifest beliefs one does not hold”.

With unanimous agreement of Britain’s most senior justices and Lady Hale – known as a legal progressive – giving the judgment, this is a resounding victory for the McArthurs and for advocates for religious freedom. Notably, the LGBT rights campaigner Peter Tatchell has publicly disavowed the initial findings against the McArthurs and the position of other activists, taking a clear stand for the family to live according to their own beliefs.

There is also an issue of compelled speech here. If the court ruled that it should be against the law for individuals to refuse to publish a particular piece of writing – whatever the contents thereof – then this would represent the only case in history (other than giving evidence) in which a British subject is obliged positively to say something, and the only case in which they would be forced to say something they did not believe. Support for gay marriage is a political position, and compelling individuals to support it in writing would represent a huge symbolic step away from Britain’s tradition of residual liberty – that is, the state tells us only we must not do, not what we must.

In an era in which an activist state has tended to be blasé about the freedoms of those with unpopular social attitudes, this decision displays a pleasing commitment to the philosopher J.S. Mill’s Harm Principle. Your freedom to swing a punch stops at the end of my nose, and you should be free to say and do as you please provided it does not damage others’ bodies or property.

The customers in this case may have been mildly inconvenienced by having to find another bakery, but the alternative – to force owners of a small business to choose between violating their conscience and potentially losing their livelihood – would be a step towards authoritarianism. For now, at least, freedom to disagree over the rawest moral questions, and to refrain from saying things one does not think, remains intact.