The Ashers case – how everybody missed the point completely

I had a very revealing conversation this morning. While browsing the three main regional newspapers a colleague asked me, as colleagues do, if there was anything in the news today? Quiet, I said, but the Asher’s verdict is due later and that will generate days of headlines. “Ah”, they replied, “the Gays and the Christians tearing strips off each other again”.

Indeed. The internet is awash with comments about fanatics, religious fundamentalists, perverts and bigots. There’s a lot of virtue signalling chaff and, to be blunt, complete and utter crap being spewed by both sides, yet very few people have realised what this really means, they just see it as an extension of the culture war referred to on this blog before.

A couple of years ago, a North Down (Alliance, typically) councillor came out with a real gem, saying that “businesses should not be able to pick and choose who they serve”. Therein, lies the nub of the matter. This is not about serving homosexuals cake, it’s a debate about the nature of business transactions.

On the one side, we had economic Neanderthals like Andrew Muir, who seem to think businesses should function as an extension of the state or a particular philosophical view. In their view, and ultimately the judge’s, there could be no reason to not produce the cake which did not amount to “direct discrimination contrary to Regulation 5(1) of the 2006 Regulations”.

And then we had the McArthurs, who were themselves not without support. Their defence, perhaps prompted by the support of the Christian Institute and the Evangelical Alliance, revolved around their faith and their disagreement with the message they were being asked to promote. Their defence was the wrong one and it subsequently failed.

The judgement handed down today is centred on the conclusion that refusal to bake the cake was discriminatory because the message it carried contained the word ‘gay’ and the McArthurs wouldn’t have objected to the  phrase ‘support marriage’. Therefore they had clearly discriminated against a ‘protected characteristic’ – regardless of the fact that it is possible to be gay and oppose same-sex marriage and support same-sex marriage and Ashers, like the author.

If the defence had of been centred on the fact that business transactions are voluntary then the outcome could have been different, and Northern Ireland could have a had a far different debate over the past two years. Discrimination in the world of business is the norm and it’s no bad thing. It’s what distinguishes a good deal from a bad one and a profit and a loss. Sure, the McArthurs probably showed bad business sense by refusing the order – their name has now been dragged through the mud for the sake of a £36 cake  – but are they guilty of anything particularly heinous by refusing a service? No more so than Bruce Springsteen was when he refused to play in North Carolina. At the very least the zealotry of the Equality Commission could have been exposed. And the role of equality legislation in undermining thousands of years of reality, where if you don’t like what someone says or thinks, you shop elsewhere and if you refuse service on the basis of whatever reason you suffer the loss of trade, could have been examined.

Ashers may have still lost on contract law, having taken the money in the first place, but now case law exists that undermines the position of a business owner with a whole range of potential consequences. Must they, in future, serve people who have behaved towards them in a vexatious manner, or people who have been slow to pay? Or even people who have maintained a vendetta? Only time will tell. But one thing’s for sure, common sense has been lost amidst the “tearing strips”.