The Gay Cake Dilemma

Across the globe, there appears to be a legal quandary as to whether one legal right trumps another legal right, mainly that of religious expression v sexual orientation discrimination.  This issue is being fought out in the surprising arena of bakeries. 

In Northern Ireland Asher’s bakery, with the financial support of the Christian Institute, is attempting to overturn an award of £500 made against them for refusing to fulfil an order placed by gay activist Gareth Lee sporting images of Bert and Ernie from Sesame Street with the slogan “support gay marriage” written across it.  The bakery has already, on two previous occasions, been found to have been guilty of sexual orientation discrimination related to this matter.  Five appeal court judges will be hearing the appeal in Belfast. 

Same-sex marriage is not recognised in Northern Ireland and an attempt to create legal recognition was sabotaged by the Democratic Unionist party using its power of veto and has since fallen by the wayside.  Theresa May refuses to force Stormont to legalise the status of same-sex marriage stating that it is a “devolved matter” and would be dealt with soon, presumably be Stormont, despite the lack of an executive and assembly. 

This issue is replicated in both California and Colorado in America where extremely similar issues are in front of the courts.  The owner of Tastries bakery, Cathy Miller, argued that she would be "very happy to serve everything from my cases to anybody", however, she could not "be a part of a celebration that goes against my lord and saviour" and therefore she could not make the cake as it violated her Christian beliefs and free religious expression.  Ms. Miller’s comments echo the general manager of Asher’s, the Northern Ireland bakery, Daniel McArthur who stated “We happily serve everyone but we cannot promote a cause that goes against what the Bible says about marriage. We have tried to be guided in our actions by our Christian beliefs”.

The Kern County Superior Court Judge David Lampe ruled the act of making cakes is protected as artistic expression and does not violate a state anti-discrimination law.   Judge David Lampe commented "A wedding cake is not just a cake in a Free Speech analysis. It is an artistic expression by the person making it that is to be used traditionally as a centrepiece in the celebration of a marriage".

Yet another cake case is being played out in Colorado, the owner of Masterpiece Cakeshop based in Lakewood Colorado would not accept the order for a cake celebrating the marriage of two men.  Jack Phillips, the owner of Masterpiece Cakeshop, refused to make a cake celebrating a same-sex marriage, also citing his religious beliefs.  The matter will shortly be heard by the Supreme Court.

Clearly more than one set of rights is involved in the cake discrimination cases and throws up questions about a whole host of freedoms, rights and what appear to be valid arguments from both sides, including religious freedoms, sexual orientation rights, freedom of artistic expression, civil liberties and for America the first amendment – freedom of speech. Discrimination of any description is abhorrent and the decisions on all these cases will be keenly watched.

If you feel you have been the victim of discrimination or you would like more information please contact contact@gaylawyers.co.uk or call 020 7043 5928