Ashers Baking Co yesterday won its appeal in the Supreme Court of the United Kingdom, which overturned several lower court rulings against it, and the imposition of a 5000 pound fine for refusing to produce the cake in 2014 for  Gareth Lee, a campaigner for gay marriage in Northern Ireland, the only place in Great Britain where gay marriage is not legal.

The cake was to feature the Sesame Street characters Bert and Ernie, who are often assumed to be gay although the show producers have recently denied this.

“In a free society, people should be able to discriminate against ideas that they disagree with.” – Peter Tatchell

“This verdict is a victory for freedom of expression,” gay rights campaigner Tatchell told Pink News. “As well as meaning that Ashers cannot be legally forced to aid the promotion of same-sex marriage, it also means that gay bakers cannot be compelled by law to decorate cakes with anti-gay marriage slogans.

“Businesses can now lawfully refuse a customer’s request to emblazon a political message if they have a conscientious objection to it. This includes the right to refuse messages that are sexist, xenophobic or anti-gay, which is a good thing.

“Although I profoundly disagree with Ashers’ opposition to marriage equality, in a free society neither they nor anyone else should be forced to facilitate a political idea that they oppose.”

Tatchell added: “Discrimination against LGBT people is wrong. But in a free society, people should be able to discriminate against ideas that they disagree with. I am glad the court upheld this important liberal principle.”

The five judges on the Supreme Court unanimously found the bakery did not refuse to make Lee’s cake on the grounds of his sexual orientation and therefore there was no discrimination on those grounds. Rather, the bakery had refused to produce a cake with a political message they disagreed with. The full judgment is here.

The judgment makes it clear that this case is different from the Masterpiece Bakery “gay cake” case.

President of the UK Supreme Court, Justice Brenda Hale, said in the judgment: “It is deeply humiliating, and an affront to human dignity, to deny someone a service because of that person’s race, gender, disability, sexual orientation or any of the other protected personal characteristics. But that is not what happened in this case and it does the project of equal treatment no favours to seek to extend it beyond its proper scope.”

The judgment makes it clear that this case is different from the Masterpiece Bakery “gay cake” case in the United States, where the issue was about refusing service on the grounds of sexual orientation, and where bias by an anti-discrimination agency against the Christians involved in the bakery caused the US Supreme Court to send the case back to the Colorado state authorities.

“The important message from the Masterpiece Bakery case is that there is a clear distinction between refusing to produce a cake conveying a particular message, for any customer who wants such a cake, and refusing to produce a cake for the particular customer who wants it because of that customer’s characteristics. One can debate which side of the line particular factual scenarios fall,” the Asher bakery  judges wrote in a postscript.

Professor Neil Foster, in his “Lawandreligionaustralia” blog examines how the case is relevant to Australia’s debate over religious freedom. “Since there was no finding of sexual orientation discrimination (for reasons noted above), the live issue was whether the operation of the law on political opinion discrimination was in conflict with relevant rights. Art 9 of the European Convention on Human Rights (ECHR) is a strong religious freedom right, and art 10 a right to free speech.

“In light of current debates in Australia about religious freedom, it is worth noting the importance of this right under the ECHR, in a quote provided by Lady Hale at [49] from a previous decision of the European Court of Human Rights, Kokkinakis v Greece (1993) 17 EHRR 397, para 31:

“As enshrined in article 9, freedom of thought, conscience and religion is one of the foundations of a ‘democratic society’ within the meaning of the Convention. It is, in its religious dimension, one of the most vital elements that go to make up the identity of believers and their conception of life, but it is also a precious asset for atheists, agnostics, sceptics and the unconcerned. The pluralism indissociable from a democratic society, which has been dearly won over the centuries, depends on it.”