I guess the headline is that we didn’t learn a great deal of new information at court yesterday (Monday). The Attorney General is now involved and we will learn more about his case today. Mr Allen for the Equality Commission hopes to begin his case tomorrow afternoon and continue into Wednesday. That leaves Thursday for the parties to respond to each other and the many questions the judges may have.
Early on, the Chief Justice suggested that it was the orientation of the cake that was key not the customer. It was one of those strange moments were Ashers’s QC seemed to agree but then spent a significant part of the morning arguing that the discrimination legislation applies to people, not an inanimate object (which surely must be right).
Ashers’s QC made some key points generally:
- The Bakery’s actions were not ‘on the grounds of’ a protected characteristic. This is their basic point – they acted based on the slogan, not the protected characteristic – i.e. sexual orientation – of the customer. It is only discrimination if your decision is based on the protected characteristic.
- They argued the judge in the lower court used the wrong comparator – she changed the slogan and the orientation of the customer – “the correct comparator is a heterosexual person placing an order for a cake with the graphics either ‘Support Marriage’ or ‘Support Heterosexual Marriage’.” Ashers argued that the comparator should be a heterosexual person ordering a cake with the slogan ‘Support gay marriage’. They wouldn’t have served such a person and therefore didn’t discriminate.
- The lower court wrongly identified the circumstances in which discrimination is unlawful in the provision of goods and services. There were a number of points here, but the key was that to use the Ashers religious beliefs against them was a significant extension of the law.
Ashers made the following arguments (this is more for the lawyers!):
- In relation to direct discrimination the lower court ruling was confused as to ‘why the treatment had taken place’ (ie the alleged discrimination) – the judge suggested that it was Ashers religious beliefs and on another occasion that it was the sexual orientation of Mr Lee. Ashers also argued the judge’s reasoning was flawed in saying support for same sex marriage and sexual orientation are “indissociable” – many heterosexual people support SSM. The Judge erred factually in saying the McAurthers knew or should of known Mr Lee was gay – that wasn’t proven in evidence in court. They also argued the comparator was flawed and that their own religious views could not be grounds for discrimination under the legislation. Ergo no direct discrimination.
- In relation to indirect discrimination it was agreed this issue wasn’t really fully raised before the lower court. The judge had found direct discrimination but had noted that if this had failed there could have been indirect discrimination. There is a legal defence to indirect discrimination of ‘justification’ and she noted this would not have applied here. Ashers simply noted this wasn’t properly before the original judge and she should not have decided this.
- In relation to anti-discrimination legislation (mainly FETO) it was argued that Ashers had supplied Mr Lee before so it wasn’t that they wouldn’t serve him at all. Instead this was a 28(1)(b) case and the key was – has Ashers refused to supply a normal service. Ashers argued that a cake with this slogan was not normal.
- Finally, arguments were made about ECHR issues – especially Articles 9 & 10. They argued the lower judge was wrong to say there was no “compelled speech” in this case. Ashers argued faith can be manifested in public as well as private. Also that the lower court ruling means all employers and those providing goods and services are now never to allow their religious belief and political opinions to enter into any decisions that have an effect on others. Ashers QC also raised the issues of proportionality and reasonable accommodation and will finish up these points in the morning.
The final point of interest was that the Chief Justice asked if the Equality Commission through Mr Allen would be giving Christian businesses any guidance. This is something we have consistently asked for. Mr Allen said he would address this point, but indicated that in his view it was not for the Commission in this case to give such guidance. No doubt there will be more on this point.
All in all, it was fairly predictable – the most fun came at the end as counsel argued amongst themselves about who was getting the most speaking time over the next few days!
Today we will hear from the Attorney General which will be really interesting. He is basically arguing that the laws (under which Ashers were found guilty) must be read in such a way so as not to discriminate against the religious beliefs and political opinions of Ashers. If they can’t be, he will argue they are then invalid, particularly under the Northern Ireland Constitution Act 1973. This really is a complex and fascinating case with potentially far-reaching implications.