by Dr Meg Warner, Theologian, Lecturer and Member of General Synod
A Northern Ireland-based family bakery this week won its appeal to the UK Supreme Court against a conviction for discrimination on the basis of sexual orientation. You may be familiar with the story – Mr Lee, an activist for the organisation ‘Queerspace’, ordered a cake from Ashers Bakery, run by a ‘conservative’ Christian couple, Daniel and Amy McArthur. The cake was to be decorated with the text ‘Support Gay Marriage’ and a photo of Sesame Street’s Ernie and Bert, as in the photo above. After initially accepting the order, the bakery later cancelled it and returned the deposit. The McArthurs were initially found guilty of sexual orientation discrimination contrary to Northern Ireland legislation. (There was more to it, but this description will suffice for our purposes.) Although an initial appeal was unsuccessful, the McArthurs were ultimately cleared by the UK’s highest court of appeal.
The essence of the Court of Appeal’s decision was that the McArthurs had objected to the message and not to the messenger. In other words, as the McArthurs would have been happy to have baked a cake with some other message for `Mr Lee, and would have refused to bake the cake with this message regardless of the sexual orientation of the person placing the order, they were not discriminating against Mr Lee on the basis of his sexual orientation, but merely objecting to being implicated in the promotion of a cause with which they fundamentally disagreed.
While commentators argue about the likely implications of this decision for LGBTI people and organisations in the UK (for example, Stonewall claims the decision ‘sets a hugely dangerous precedent’, whereas Peter Tatchell has argued that the decision is a victory for freedom of expression, and Savi Hensman that the decision is no great loss for LGBT rights), I find myself wondering how the McArthurs, and Mr Lee, are getting on.
Take the McArthurs – sure, they’ve had a big win, but what kind of shape are they – and their business – in? Family-run bakeries tend not to be disproportionately represented amongst top-level litigants in the UK. Litigation is inordinately expensive, and especially at this level, so the McArthurs are likely now either bankrupt or caught up in the political machinery and machinations of others in ways they could not possibly have foreseen when they originally gave Mr Lee his deposit back. Of course, it is not only money that gets chewed up in legal proceedings, but also time, emotions, privacy and dignity. What kind of abuse has been directed at the McArthurs over the years since they cancelled Mr Lee’s order? Anybody who has stuck his or her head, however unwittingly, over the parapet on either side of the sexuality issue, will know from bitter experience the sort of invective that has likely been directed at the McArthurs, and no doubt also at Mr Lee, who has now also suffered a major defeat. I hope that the McArthurs have a good pastor and a supportive congregation, and Mr Lee very good friends. They will have needed them.
One of the great ironies of this case is that had Ashers Bakery been part of the business empire of The Church of England Inc, instead of the family portfolio of Mr and Mrs McArthur, none of this would ever have been an issue. Religious organisations are entitled to discriminate. There is no need on their part to distinguish between message and messenger, opinion and person – UK religious organisations, including churches, are permitted (in certain defined circumstances) to discriminate on the bases of sexuality, marital history, gender and religion or belief.
‘Mum and Dad’ family-businesses are bound by legal restrictions from which churches are excluded. The irony, of course, is particularly marked in the case of the Church of England, which is an established church. Even though Magna Carta provides that the monarch is to be subject to the law of the land, the established church of which the monarch is supreme governor may discriminate between the people of the land in ways that would be illegal for those people themselves.
With increasing calls for disestablishment as the Church of England drifts ever-further from the people to whom it is called to minister, and as the evangelism of ordinary English women and men (and especially young people) proves ever-more challenging, it is time for the Church of England to show leadership by relinquishing its special privilege to discriminate.
Probably the McArthurs were not aware, prior to ‘cake-gate’, that churches are entitled to discriminate in ways that they themselves are not.
I bet they know now. I wonder how they feel about it?