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Ashers Baking Company and the shaming of Mr Lee

Ashers Baking Company and the shaming of Mr Lee

Bert and Ernie have come symbolic if the gay marriage cake row

It was World Mental Health Day this week. On the same day the UK Supreme Court gave its judgment in the Ashers Baking Company case.

The question for the Court was, could the bakery be required to bake a cake with an image of Sesame Street’s characters Bert and Ernie and the words ‘Support Gay Marriage’ on it? The bakers refused to bake the cake. They are Christians. The customer, Mr Lee, is a gay man. He’s actively involved in his local LGBTI community.

All this took place in Northern Ireland. Gay men and lesbians cannot marry in Northern Ireland. By refusing to bake Mr Lee’s gay cake, did the bakers discriminate against Mr Lee? The Supreme Court didn’t think so.

I can’t stop thinking about Mr Lee and how devastated he must be. Had the bakers lost, I don’t doubt that they would have been distressed, but Mr Lee’s very identity has been publicly disparaged and that shame – not to be served – has been compounded by the highest court in the land. The baker’s God would have forgiven them if they had been required to bake the cake. (I don’t know their God but isn’t forgiveness part of his purpose?).

Who can help Mr Lee now that the state has turned on him? At the same time, the Supreme Court has contributed to the sense of isolation and vulnerability LGBTI people experience. The High Street suddenly feels less safe. Our growing confidence as a community has taken a bashing.

The judgment is clever. Too clever. Not for the first time, the judges have prioritised their intellectual prowess over pragmatic reasoning. The Supreme Court does not properly take account of the historic abuse of gay men (particularly in Northern Ireland).

The cake design was a clue and even reveals the extent of that persecution. The presence of Bert and Ernie isn’t just cute. It’s deeply symbolic. LGBTI people, as we grew up, found comfort in the hope that Bert and Ernie might be gay. That we gay kids weren’t alone. There were others like us and, even better, they were together. It’s absurd and pathetic, but when there are no other role models, you take what you can get. It is clear from the judgment that this insight into the LGBTI experience was lost on the Court. LGBTI people, like all those who have been persecuted, find humour in their desperation, but that ability to laugh doesn’t lessen the anguish.

How brave Mr Lee was by going into that bakery and asking for that cake to be baked. I imagine him taking a deep breath as he went inside. He faced his demons. He embraced his future. There was nothing that he was doing by entering that bakery that wasn’t caught up in his identity as a gay man.

When there is LGBTI persecution it manifests itself everywhere. There’s no safe place: home, work, leisure, it doesn’t matter – everywhere is risky. Harm to LGBTI people will be carried out as readily by strangers, family members, and employers as it will be by agents of the state, such as the police, immigration officers, teachers and healthcare workers.

That harm occurs in private spaces as well as in public. For LGBTI people, who the perpetrators are is immaterial. No doubt it’s worse when it’s your mum who turns against you, or the police who demean you, but those casual encounters in the street where we are left ridiculed and humiliated, they are crushing. Being denied service in a shop is no different.

The Court dismissed Mr Lee’s claim of sexual orientation discrimination because, amongst other things, the judges held that anyone asking for that cake to be baked would have been refused, whether they were straight or gay. They miss the point. Mr Lee, a gay man, placed the order. Only a gay man could have dreamt up such an order. Mr Lee’s persecution (past and present) is an essential part of his identity as a gay man. His fight to end that persecution is part of his identity as a gay man.

Just because he battles to end the harm done to him and people like him, doesn’t make that aspect of his identity any less protected. The judges chose to make the shaming of Mr Lee a battle between his expression rights and the bakers’ religious freedoms and by doing so they managed to airbrush out his identity. When Mr Lee is fighting for his equality, he’s not an activist. He’s battling for his essence. Demanding LGBTI equality is not political activism for LGBTI people.

The Court made a big deal about the fact that the bakers are willing to serve LGBTI people. Mr Lee had even shopped there before. Interestingly, the Supreme Court not that long ago found that a Registrar who refused to perform civil partnerships was discriminating against gay men and lesbians. I have no doubt that the same Registrar would have had no problems with a gay man or lesbian coming in to register the death of her or his mother and would have been suitably compassionate.

Why is Mr Lee’s experience with Ashers Baking Company so different? They’ll serve him as part of their generic function as a baker, but they won’t provide the specific service that he requires as a gay man. You cannot divorce Mr Lee from his sexual orientation. He’s gay. And he can’t marry a man in NI. That refusal goes to the heart of who he is. By refusing to bake a cake which laments (highlights?) Mr Lee’s discrimination, the baker is denying him. The Registrar’s religious beliefs could have been accommodated. Public policy demanded that they weren’t. Why are the bakers?

The Ashers judgment is more than a wasted opportunity to bolster the status quo. It is grim. Its implications cannot be underestimated and are more worrisome than the judgment itself. Our defences have been breached. Can we shore them up?  Social media is already ablaze with those set to exploit it. There will be case after case seeking to use religious freedom to trump LGBTI equality. Can we have confidence in the ability of the Supreme Court to do the mental gymnastics to make sense of it all? Probably, but what about the rest of us? A new era has been ushered in and LGBTI people’s mental health will pay the price.

Jonathan Cooper is a gay barrister and leading human rights lawyer.