It is fitting that the gay cake verdict has been rescheduled to avoid election day, when convention dictates that newspaper columnists express no political opinion.
Belfast County Court will in fact be delivering two verdicts in a fortnight’s time – one on alleged discrimination on the grounds of sexual orientation and the other on the grounds of political opinion.
There is a lot of confusion about this distinction. Even the Equality Commission, which is bringing the case against Ashers Bakery, only added political discrimination to its initial charge of sexuality-based discrimination after taking legal advice.
Public and media debate has focused on the difference between refusing to serve a gay customer and refusing to bake a gay cake, without realising that the ‘political’ concept covers this difference by treating the slogan on the cake as an opinion.
So although the debate has been quite sophisticated for such an intrinsically daft story, with many people at pains to point out they support Ashers without holding any negative views about gay people or even gay marriage, a lot of this pondering has missed the point.
A business could be found innocent of discriminating against its customers and still be found guilty of discrimination against its customers’ views.
Refusing to provide goods, services or facilities to someone because of their sexuality was outlawed in Northern Ireland in 2006 under direct rule. Stormont’s blushes were thus spared and apart from an unsuccessful judicial review by a UK-wide alliance of evangelical groups there was little controversy. It is safe to assume there is limited public support here for any ‘right’ to discriminate against gay people simply because they are gay.
Political discrimination is a much less straightforward idea. It was introduced to Northern Ireland by the 1976 Fair Employment Act, which clearly meant it as a useful shorthand for ‘unionist or nationalist’ in cases where ‘Catholic or Protestant’ did not accurately describe an employment complaint.
In 1998, this law was updated to include the provision of goods and services - encompassing the supposedly absurd hypothetical so often cited in the gay cake case of an Orange man asking for a ‘Support Camp Twaddell’ cake on the Falls Road.
Also in 1998, the act that brought the Good Friday Agreement into force included ‘political opinion’ as one of the nine equality categories - race, religion, gender etc. - that the Equality Commission is set up to police. Once again, both laws clearly intended this to be a shorthand for ‘unionist or nationalist’. However, the only political opinion specifically excluded in the legislation is support for violence, so in theory you can make a case that any other opinion is protected.
Since 1998, a number of judgments have tested this theory to the point where legal texts now define ‘political opinion’ as ‘matters of public policy’.
This could be seen at work in the gay cake hearing, where Ashers argued that Northern Ireland does not have same-sex marriage so it is not a public policy, while the Equality Commission argued that same-sex marriage has been debated in the assembly so it is a question of public policy.
Whatever way the ruling goes on this issue there could be profound ramifications. The court faces having to clarify the definition of political opinion for equality purposes and it is hard to see how this can be done without kicking off another round of test cases and unforeseen consequences. Defining protected political opinions in general terms, such as topics of public dispute or subjects that politicians have debated, is an open-ended invitation to extend the definition forever.
Requiring the matter in hand to be related to the equality categories, as gay marriage is to sexual orientation, would fare no better. What political opinion is not in some way related to those categories, which cover the entire population nine times over?
The only alternative is to start creating lists of protected and non-protected opinions. That could quickly look like regulation of opinion, which is hopefully a road few want to go down (and also presumably why ‘unionist and nationalist’ was not specified in the first place.)
It might be argued that the issue is not about opinions as such but about expressing them through unequal treatment of others. So if a bakery said it would not make a cake expressing any view on gay marriage, would that suffice and if not why not?
The ruling will be fascinating - and all the more so when you realise what endless questions are at stake.
newton@irishnews.com
