In a guest post, Dr Michael Arnheim, Barrister at Law and Sometime Fellow of St John’s College, Cambridge, offers another view of Lee v McArthur & Ors [2016] NICA 29 and the forthcoming appeal.
Introduction
What is the point of yet another article on the “Gay Wedding Cake” saga? Just this, that, having lost in two courts already, the Christian bakery owners are about to receive a final knock-out blow in the UK Supreme Court – unless their lawyers take off their gloves and go for the jugular. Up to now, their lawyers have fought their corner in a quiet, gentlemanly way – on their adversaries’ terms. It is time to challenge the whole very shaky basis of the judgment of the Court of Appeal in Northern Ireland.
Basic facts
The basic facts of the case are simple enough. A Belfast bakery owned by a Christian couple refused an order to make a cake bearing the slogan “Support Gay Marriage”, as the bakery owners believe that same-sex marriage is sinful. In addition, same-sex marriage was not and is still not legal in Northern Ireland. The prospective customer got his cake made by another bakery but took the Christian bakers to court and won. The County Court held that the Christian bakers had discriminated against the prospective customer “directly on grounds of sexual orientation” and “directly on grounds of religious belief or political opinion”: Lee v Ashers Baking Co. Ltd [2015] NICty 2. This decision was upheld by the Court of Appeal in Northern Ireland: Gareth Lee v Colin McArthur, Karen McArthur and Ashers Baking Company Ltd [2016] NICA 29. The case is now due to be heard by the UK Supreme Court in May 2018
Some crucial points
Privilege
Wrong approach to “comparators”
Illogicality
European Convention on Human Rights
Dubious legality of the 2006 Regulations
Conclusion
