WASHINGTON — Bakeries are the new civil rights battlegrounds, and not just in the United States.
In a few months, Britain’s Supreme Court will hear arguments on whether a bakery in Belfast, Northern Ireland, could refuse to make a cake celebrating same-sex marriage. The case is a trans-Atlantic echo of the one heard two weeks ago by the United States Supreme Court.
Remarkably, both cases will resolve clashes between gay rights and claims of conscience in the context of confections.
The case from Belfast concerns Gareth Lee, a gay rights activist in Northern Ireland, where same-sex marriage is not legal. In 2014, he sought to buy a cake from Ashers Baking Company. He had seen a leaflet from the bakery advertising a contraption that scanned graphics provided by customers and put them on cakes.
Mr. Lee’s graphic showed Bert and Ernie, the Sesame Street characters; a logo for his group, QueerSpace; and the statement “Support Gay Marriage.” The bakery accepted his order and his money, and it gave him a receipt.
A weekend passed. Karen McArthur, one of the bakery’s directors, called Mr. Lee to turn down his order. Making the cake he had requested, she said, would violate her Christian faith.
“Using our skills and creativity to produce a cake supporting gay marriage — which we consider to be contrary to God’s word — was something that would be on my conscience,” Ms. McArthur said in a court filing.
Mr. Lee said he was shocked and bewildered. “It is not at all nice,” he said in a court filing, “to think that a business will discriminate in the way that they provide services to me because I am gay or because I have political views about the need for legislation to support gay marriage or because I did not share their religious views.”
The appeals court in Belfast ruled against the bakery, saying that no sensible person would understand the graphic on the cake to be the bakery’s speech. “The fact that a baker provides a cake for a particular team or portrays witches on a Halloween cake does not indicate any support for either,” Lord Chief Justice Declan Morgan wrote.
The appeals court in the American case made a similar observation about the bakery there, Masterpiece Cakeshop in Lakewood, Colo. “It is unlikely that the public would understand Masterpiece’s sale of wedding cakes to same-sex couples as endorsing a celebratory message about same-sex marriage,” Judge Daniel M. Taubman wrote.
There are other similarities between the cases. Both bakeries said they did not discriminate against gay people and were happy to serve anyone. All the bakeries objected to, they said, was being forced to convey a message at odds with their faith.
But there are differences, too, ones that illuminate the limits of each side’s arguments.
The cake in Northern Ireland would have included words. David D. Cole, a lawyer with the American Civil Liberties Union, which represents the gay couple in the Colorado case, told the justices that his clients had not asked the baker to include words on their cake or, indeed, to send any message at all.
“There was no request for a design,” Mr. Cole said. “There was no request for a message. He refused to sell them any wedding cake. And that’s identity-based discrimination. It is not a decision to refuse to put particular words on it.”
The cake Mr. Lee wanted, on the other hand, would have included the phrase “Support Gay Marriage,” which is certainly a message. On the other hand, what the Irish bakery does sounds mechanical rather than creative. “The image provided by the customer is scanned and individually put through the printer using inkjet, sized and placed on the cake,” Ms. McArthur explained.
Kristen K. Waggoner, a lawyer with Alliance Defending Freedom, which represents the Colorado baker, Jack Phillips, said her client objected to using his artistic talents to create something custom-made and unique.
“When we have someone that is sketching and sculpting and hand designing something, that is creating a temporary sculpture that serves as the centerpiece of what they believe to be a religious wedding celebration, that cake expresses a message,” Ms. Waggoner told the justices.
There is another difference between the two cakes. The one in Northern Ireland was for a party, not a wedding. The Colorado cake was for a wedding and so would have taken on meaning from its context, Ms. Waggoner said.
The two legal systems have their differences, too. When the United States Supreme Court heard arguments in the Colorado case this month, people stood in line for days in hopes of seeing the proceedings. The court, which does not allow camera coverage, released an audio recording of the arguments three days later.
Britain’s Supreme Court takes a different approach. For starters, it will sit in Belfast to hear the case. “My fellow justices and I think that the experience of seeing the Supreme Court in action should not be limited to people within easy reach of London,” Justice Brenda Hale, the president of the court, said in a video message posted on the court’s website.
But that was not all. “The Supreme Court,” she said, “is committed to being one of the most open and accessible in the world and, like all our hearings, our Belfast cases will be live streamed via our website for everyone who cannot get to see us in person.”
Our Supreme Court lacks that commitment.
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