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FREEDOM OF RELIGION IN BUSINESS:
THE ASHERS CASE

Ashers
We welcome the decision made by the Supreme Court in the case of Ashers today.

1. The case of Gareth Lee v Ashers Baking Co LTD, Colin and Karen McArthur has highlighted the difficulty that Bible-believing Christians face today in living out their faith according to the Bible, especially in a business context.

2. A judgement rendered in a County Court in Northern Ireland condemning the McArthurs, Ashers directors, for discriminating against a homosexual undermines the right to freedom of religion for Bible-believing Christians like the McArthurs.

3. The decision is even more regrettable in that it was handed down in the very year that commemorates the remarkable achievements of the Magna Carta, 800 years ago. The British nation can pride itself on being at the forefront of the development of human rights based on its Judeo-Christian heritage. Yet the very nation that over the past centuries has defended the rights of the individual at home and further afield now appears to be jeopardizing those fundamental rights through its recent laws and judgements.

4. In our opinion the judgement should be overturned because (I) the alleged discrimination on the grounds of the Plaintiff’s homosexuality has not been established, and (II) Bible-believing Christians are entitled to manage their business in accordance with their right to freedom of religion.

I. Discrimination on the grounds of the Plaintiff’s homosexuality was not established

To support his campaign for gay marriage the Plaintiff must have known that (A) the Judeo-Christian definition of marriage is between a man and a woman, and he should have recognised that (B) the reason for refusing the cake was the iced message and logo.

A. The Judeo-Christian definition of marriage is between a man and a woman

5. The words of Jesus to the Pharisees on the issue of marriage and divorce were clear:

“Have ye not read, that he which made them at the beginning made them male and female, and said, For this cause shall a man leave father and mother, and shall cleave to his wife: and they twain shall be one flesh? Wherefore they are no more twain, but one flesh” (Matt. 19 v. 4-6).

6. This reference to Adam and Eve being joined together in marriage as recorded in Genesis 2 v. 21-24 underpins the definition of marriage throughout the Bible as a union between a man and a woman. Marriage is a Judeo-Christian concept established by God and has always been intended to unite a man and a woman; it also underpins the definition provided in Article 12 of the European Convention on Human Rights which reads:

“Men and women of marriageable age have the right to marry and to found a family”

7. Homosexuals enjoy the same rights equally with all other persons. They, like everyone else, have the right to marry someone of the opposite sex according to the law of the land. It is therefore strange that the definition of marriage upheld by the McArthurs, which corresponds to the legal definition in force in Northern Ireland as well as that provided by the European Convention on Human Rights (this has been binding over UK domestic law since the Human Rights Act 1998) is nowhere mentioned in the judgement. The duty of the court is primarily to uphold the current law on marriage, not to indirectly support the political campaign of a Plaintiff, which aims at changing that very law.

B. The reason for refusing the cake was the iced message and logo

8. Mr Lee was not discriminated against in any way on the basis of his homosexuality when the McArthurs refused to produce the iced message and image on the cake he ordered. The fact that the bakery was prepared to provide Mr Lee with a cake but without the message and logo demonstrates that the refusal was based on the message and logo, not on Mr Lee’s homosexuality of which the McArthurs were totally unaware.

9. However, in order to assert that there had been discrimination, the Judge decided that the decision by the McArthurs not to provide the cake had been taken because of Mr Lee’s homosexuality. The Judge reasoned that Mr Lee was treated less favourably than would have been another person, who was not a homosexual.

10. The comparator submitted by the McArthurs was that a heterosexual customer requesting a cake with the same message as that requested by Mr Lee would have been denied it in exactly the same way. But the Judge decided this comparator over-simplified the enquiry. She stated that the proper comparator should be a heterosexual person requesting a cake with the message “Support Marriage” or “Support Heterosexual Marriage”. The two elements of the comparator merit analysis: 1. the sexuality of the person ordering the message and logo on the cake and 2. the nature of the message and logo to decorate the cake.

11. The first element is the sexuality of the person ordering the message and logo on the cake. Rather than considering the facts as they were, the Judge made every effort by way of constructive presumptions to prove that the McArthurs had refused to produce the iced message and logo because Mr Lee was homosexual, this being the determining factor justifying the refusal. The McArthurs have consistently denied that they knew of Mr Lee’s sexuality before making their decision. Nevertheless, without any convincing evidence to the contrary, the judge decided that they had made their decision on the grounds that Mr Lee was homosexual.

12. The second element is the message and logo on the cake. The Judge insisted that the second element of the comparator to be taken into account should be a different message, which she indicated as “Support Marriage” or “Support Heterosexual Marriage”, although she abstained from indicating what logo should be associated with the message in her comparator. However, by creating a different message, the Judge used a misleading comparator resulting in the comparison of goods and services of a different nature. For the comparator to be of any use in order to establish discrimination, the goods and/or service about which discrimination is alleged must remain the same. In the circumstances the iced message with logo on the cake should have been the same in the comparator as that which was ordered for the comparison to be of any significance, with customers of different sexual orientation, to determine whether or not they were being treated equally. The message and logo would have been refused to a heterosexual customer as to a homosexual customer, proving that the case was refused because of its message and logo, not because the person who ordered it was homosexual. It is therefore clear that both homosexual and heterosexual customers would have been treated equally and that no direct or indirect discrimination against Mr Lee can be established.

13. It is most regrettable that the Judge failed to distinguish the message on the cake from the sexual orientation of the Plaintiff, which played no part in the decision made by the McArthurs. What was contentious for the Christian business directors was the message on the cake, not the sexuality of the customer placing the order. The McArthurs, by token of the same Christian faith which led them to refuse the production of this cake, would take care to treat Mr Lee with the same respect and dignity as any other customer, regardless of sexual orientation, as it is cardinal to their faith that all people are of equal value before God.

II. Bible-believing Christians are entitled to manage their business in accordance with their right to freedom of religion

Bible-believing Christians can manage their business in accordance with their right to freedom of religion since (A) the freedom of conscience of Bible-believing Christians is absolute, and (B) Bible-believing Christians have the right to manifest their religion in their business dealings.

A. The freedom of conscience of Bible-believing Christians is absolute

14. Article 9 paragraph 1 The European Convention on Human Rights declares:

“Everyone has the right to freedom of thought, conscience and religion.”

15. It must be noted that this right is absolute, in other words it does not suffer any form of interference by public authorities or other persons within society. A Bible-believing Christian should therefore be free at all times to uphold his religious beliefs and not be coerced to act against them.

16. The European Court of Human Rights in the case Kokkinakis v. Greece (Judgment 25 May 1993, paragraph 31) states:

“As enshrined in Article 9 … freedom of thought, conscience and religion is one of the foundations of a ‘democratic society’ within the meaning of the Convention. It is, in its religious dimension, one of the most vital elements that go to make up the identity of believers and their conception of life … The pluralism indissociable from a democratic society, which has been dearly won over the centuries, depends on it.”

17. The Court has recognised that Christian denominations can be defined as religions or beliefs, which fall within the remit of the protection afforded by Article 9. The religious principles of Biblical Christianity are foundational to the conduct of all aspects of the life of the McArthurs, including the way they direct and carry out their business. They were being requested to act in a way that is contrary to their strongly held religious beliefs and in doing so to violate their conscience, which would be in breach of their absolute right to freedom of thought, conscience and religion, protected under the Convention.

18. There is no doubt that public opinion in support of homosexual marriage does not constitute a religion or a belief protected by Article 9, but falls under the right to freedom of expression protected by Article 10, which is a qualified right. The Plaintiff was seeking to express a political opinion in favour of same sex marriage by using the slogan on the cake. However, under the Convention, the Plaintiff’s qualified right to freedom of expression is overriden by the necessity to protect the McArthurs’ absolute right to freedom of thought, conscience and religion. If that right is to have any tangible meaning, it must be guaranteed that the McArthurs are not deprived of their right to freedom of thought, conscience and religion or compelled to act contrary to it. The Plaintiff’s request should therefore be dismissed and the right of the McArthurs not to act against their conscience upheld.

B. Bible-believing Christians have the right to manifest their religion in their business dealings

19. The right to freedom of religion of Bible-believing Christians implies that they have the right to manifest their religion in private as well as in public and to witness of their faith to their customers.

20. Article 9 paragraph 1 of the European Convention reads:

“Everyone has the right to freedom of thought, conscience and religion; this right includes freedom to change his religion or belief and freedom, either alone or in community with others and in public or private, to manifest his religion or belief, in worship, teaching, practice and observance.”

21. Throughout the case the McArthurs have emphasised that they put into practice their biblical principles in all their activities, including the way they manage and carry out their business. The manifestation of religious belief in private or in public is protected by the Convention. The European Court of Human Rights has also indicated in the case Kokkinakis v. Greece (Judgment 25 May 1993 paragraph 31):

“While religious freedom is primarily a matter of individual conscience, it also implies, inter alia, freedom to “manifest [one’s] religion”. Bearing witness in words and deeds is bound up with the existence of religious convictions.
According to Article 9 (art. 9), freedom to manifest one’s religion is not only exercisable in community with others, “in public” and within the circle of those whose faith one shares, but can also be asserted “alone” and “in private”; furthermore, it includes in principle the right to try to convince one’s neighbour, for example through “teaching”, failing which, moreover, “freedom to change [one’s] religion or belief”, enshrined in Article 9 (art. 9), would be likely to remain a dead letter.”

22. The Court highlights that the right to manifest one’s religion can go as far as trying to convince one’s neighbour, so that he may be led to change his/her religion or belief. In the light of this jurisprudence, the McArthurs are fully entitled to seek to reach out to any person within the community, whatever his/her creed or religion, to seek to bring them to the same belief as they have, and they can do so by way of goods and services they sell and/or don’t sell. Through their business the McArthurs, if they wish to do so, are fully entitled to witness to Mr Lee of their beliefs so that, for example, he may have the opportunity to change his beliefs about marriage and try to convince him that marriage is only between a man and a woman as instituted by God and recorded in the Bible.

23. Of course in so doing the McArthurs should not use improper means, but respect the freedom of those they witness to maintain their own beliefs (idem, paragraph 49). In this case, all the elements show that the McArthurs used only proper means to witness of their faith both by setting up their business as a Christian business and calling it Ashers in reference to the Bible, selling goods and services through which they witness of their biblical faith to their customers, and politely refusing to ice a cake with a slogan that ran contrary to their religious beliefs.

Conclusion:

24. The case of Gareth Lee v Ashers Baking Co LTD and the McArthurs certainly raises concerns as to the possible discrimination and persecution of Bible-believing Christians who intend to live and witness of their faith in the Lord Jesus Christ while establishing and developing their business. However, the right to freedom of religion for Bible-believing Christians in business in Northern Ireland and the rest of the United Kingdom must be upheld. Christians managing businesses may wish to state in their Constitution or Memorandum and Articles of Association as well as in their Terms and Conditions what goods and/or services they would or would not provide in accordance with their Judeo-Christian convictions and beliefs, making reference to the Bible if necessary.

25. Delivery or non-delivery of goods and services because of genuinely held religious beliefs should never be interpreted as discrimination on the grounds of a person’s sexuality or any other status. Whoever places an order, there are goods and services that the owner of a business is entitled not to deliver if such a delivery is contrary to the dictates of his/her conscience or when it contravenes the very manifestation of his/her beliefs and the witness given in accordance with these beliefs.

26. In this case it would appear that the McArthurs clearly did not discriminate against Mr Lee because of his homosexuality and did not impinge on his right to express his political opinion. The McArthur’s right to freedom of religion should be respected and protected as they operate their business in accordance with their own religious convictions.