Ashers Bakery. Politicians should do their job rather than force courts to arbitrate on conflicting rights

Who needs the Supreme Court when you’ve got ConservativeHome? Yesterday’s verdict on the Ashers Bakery dispute bears out to a large extent what this site argued about the case back in 2016.

As we said at the time, it would be discriminatory to refuse to serve a gay customer on the grounds of their sexuality, but Ashers were within their rights to choose not to make a cake promoting a political policy that they fundamentally disagree with.

While I disagree with their views on same sex marriage, I’m glad that they are now free to live by them as they wish. There are questions to answer as to why the state has spent a small fortune in taxpayers’ money, and taken up years of the bakers’ lives, pursuing a dispute which should have been left for the market, not the law, to pass verdict on.

There is also reason to take issue with the way in which some campaigners and media outlets have misrepresented the case. By clumsy wording or cynical design, the Ashers case has wrongly been reported as relating to a “gay wedding cake” – implying a refusal on the grounds of a customer’s orientation – when in fact it was a cake with a slogan supporting a change in the law on same sex marriage. Had I as a straight man ordered this cake, I too would have been refused, because the cake, not the customer, was the problem.

Peter Tatchell, admirably consistent as ever in his application of principle and observation of facts, has welcomed the verdict, on the grounds that:

“As well as meaning that Ashers cannot be legally forced to aid the promotion of same-sex marriage, it also means that gay bakers cannot be compelled by law to decorate cakes with anti-gay marriage slogans.

“Businesses can now lawfully refuse a customer’s request to emblazon a political message if they have a conscientious objection to it. This includes the right to refuse messages that are sexist, xenophobic or anti-gay, which is a good thing.”

By contrast, the campaign group Stonewall is still being rather disingenuous about the facts of the case. Their response claims that: “‘The Court is saying the right of freedom of expression in effect allows people to discriminate against others based on who they are.” But that is precisely not what the court is saying. Stonewall is surely not asserting that supporting marriage equality is an inherently LGBT characteristic, so their position is incoherent at best.

The most concerning aspect of this whole dispute lies in something ConservativeHome highlighted when first covering it: politicians and legislators are keen to create protected rights but refuse to arbitrate between them where they run up against each other. Overlapping rights inevitably come into conflict, that’s the nature of them. It is an abdication of responsibility for MPs to keenly create them in law, and take the plaudits for doing so, but then fail to deal with the less popular but essential job of distinguishing their limits and which has primacy, apparently out of fear of causing anybody offence or disappointment.

The result of that abdication is visible in the case of Ashers bakery – what politicians are unwilling to resolve in laws is instead fought out in the courts, at large expense to people who find themselves caught up in being a test case. That is a deeply unsatisfactory way to decide such important matters.

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Author: Mark Wallace

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