Short THREAD on the Gay Cake case.
The bakers did not know anything about Mr Lee’s sexual orientation. They would have refused to supply such a cake to a straight customer. They employed and served other gay people. The objection was to the message not the sexual orientation of the messenger. /1
So was there discrimination on the grounds of Mr Lee’s political opinion? The Supreme Court said here, too, it was possible to argue that the discrimination was to the message rather than his opinions. But it was more difficult to dissociate politics and person. /2
Having decided there might be discrimination on the grounds of political opinion, the Supreme Court then considered whether the bakers had a defence. Was it right to compel them to produce a cake promoting a message with which they deeply disagreed? /3
The Supreme Court pointed out that Article 9 of the European Convention on Human Rights protects your rights not to express a belief that you do not hold. And that obliging the bakers – on pain of damages – to produce the ‘Gay Cake’ contravened that right. /4
I am not a discrimination lawyer but the legal principles developed in the case, important though they are, seem to me to be unlikely to be of wide application. The facts – discrimination against a message and not a messenger – are likely to be rare. But the case is important. /5
Standing back, it does not seem to me that it is the role of the law to be the arbiter of judgments that are moral in character. Judges have no ‘Open Sesame’ to unlock morality’s insoluble conundrums. /6
We must as a society try to thread our way through these thickets together, acting in good faith, and earnestly seeking consensus. The law risks its own legitimacy if it supplants that process. /7
I think of the painful debate between some trans men and women and some born male and female about whose rights should take precedence. That is a question to which there is no good answer. All we can have is a process, a search for mutual respect (supremecourt.uk/cases/docs/uks…). /ENDS
