Gay cake: Freedom of expression works two ways – to say and listen - Euan McColm

Years of legally-enforced discrimination against people on the grounds of their sexuality should be a cause of enduring national shame. The rights people now take for granted were a long time coming.

The idea of people being jailed for their sexual preferences seems like the stuff of dystopian fiction, now, but for older lesbians and gay men, the risk of imprisonment was very real, indeed.

It wasn’t until 1981 that Scotland followed England and Wales (which had acted in 1967) in decriminalising homosexual acts. And even then, the freedoms granted had limitations. The presence of a third person in a private place where gay sex was taking place automatically rendered the act illegal. And, pandering to the then widely-held notion that homosexuality was something that could be passed on by predatory older men, the age of consent was set at 21, compared with 16 for heterosexual couples.

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“Support Gay Marriage” is a perfectly legitimate political slogan but so is “Ban Gay Marriage”, argues Euan McColm. Picture: Getty Images

So, legislation in 2014 allowing same sex couples to marry was both hugely significant and long overdue. It was also, at that time, unfinished business. Gay couples in Northern Ireland remained unable to marry. It was only when the UK Government stepped in in 2020 that the law was brought into line with England, Scotland and Wales.

With Northern Ireland firmly out of step with the rest of the UK in 2014, activist Gareth Lee kick-started a chain of events which culminated last week with the European Court of Human Rights (ECHR) declining to support his case against a bakery which had refused to decorate a cake with the slogan “Support Gay Marriage”.

Lee had approached Ashers Baking Co. in Belfast to have the cake made but the company refused on the basis that the slogan he had requested stood in conflict with their position. The company would happily bake goods for anyone but would not put messages which contradicted their Christian beliefs on its products.

Lee sued and a Northern Irish court ruled he had been discriminated against on the basis he’s gay. Of course, that wasn’t the end of the matter. In 2018, the UK’s Supreme Court ruled the bakery’s refusal to provide a cake bearing a pro-gay marriage slogan did not amount to discrimination.

Gareth Lee had approached Ashers Baking Co. in Belfast to have the cake made but the company refused on the basis that the slogan he had requested stood in conflict with their position. Picture: Contributed

The ECHR did not, last week, express a view on whether Lee had been a victim of anti-gay prejudice. Rather, it ruled the case inadmissible because he had failed to “exhaust domestic remedies”.

This, then, may not be an end to matters even though it should be.

Lee’s campaign touches the liberal heart. Of course, lesbians and gay men should have the right to marry.

But that doesn’t make his battle just.

Bakery owners Amy and Daniel McArthur, who own "Ashers" in Belfast, speak to the media outside the Supreme Court. Picture: Leon Neal/Getty Images

When the ECHR rejected his case, Lee said that freedom of expression “must equally apply to lesbian, gay, bisexual, and trans people” and I don’t think anyone could find anything to disagree with there.

But freedom of expression does not merely give us the right to say what we believe, does it? It gives other other people the right to do the same and, boy, some of those people are going to say some pretty stupid and hateful things.

In the case of equal marriage, one is perfectly free to express the view that it is wrong. If one is a business owner and the expression of such views negatively impacts on trade, then that’s hard cheese.

Freedom of expression must include the freedom not to support any position espoused by another. Surely the right of the company not to back Lee’s political position is as precious as his right to hold it?

There’s much talk of culture wars, these days, and while I’m not sure that a narrative of perpetual division is entirely accurate, it certainly seems we’re living in tribal times. Our political debate is of the lowest grade, with opposing parties quick to call bad faith in each other.

On social media, we see terrifying orchestrated campaigns against people deemed to hold unworthy views on a range of issues. Often these views are entirely misrepresented in order to maximise outrage. We’ve seen countless cases of people losing jobs and having their lives turned upside down after being hounded by online mobs because they expressed controversial opinions.

It’s important that during this new era of outrage we don’t become complacent about people’s right to hold and express views which might offend us.

“Support Gay Marriage” is a perfectly legitimate political slogan but so is “Ban Gay Marriage”. I wonder if those who believe Ashers should have taken Lee's commission would feel equally strongly that a company should be compelled to supply a cake bearing a slogan opposing the right of gay people to wed.

The old saying about disagreeing with someone’s views but “defending to the death” their right to express them is a bit melodramatic for my tastes but the principle is sound. My freedom to express my uniformly wise and considered opinions means I must tolerate others’ right to say whatever bloody stupid thing it is they’re saying today.

Opposition to gay marriage is very much an obsession of a minority, these days. YouGov polling from last month shows that half of us “strongly support” the policy. A further quarter of people “tend to support” it.

Perhaps, like me, you would prefer to see greater support than now exists. Perhaps you would like it to be the case that not a single soul thinks it wrong for two men or two women to marry.

All the evidence from past polling shows the number of people who support gay marriage is rising. There’s still a way to go but society is moving.

Doubtless, campaigners such as Gareth Lee have played a part in ensuring the current direction of travel but they will not reach their preferred destination by using the law to compel others to promote views with which they might disagree.

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