No separation of Church and State for Northern Ireland

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Guest writer Claire Mullaly discusses the Supreme Court’s decisions to uphold discrimination on religious grounds in the provision of goods and services.


On October 10 2018, the Supreme Court decision on the Ashers Bakery “gay cake case” was delivered. The Court held unanimously that the bakery had neither discriminated against Gareth Lee on the grounds of sexual orientation nor political belief. The next week, a “No Irish, No Gay” banner appeared on an M1 motorway bridge in Northern Ireland. The Supreme Court decision has emboldened those across the United Kingdom, but particularly in Northern Ireland, who have an agenda of discrimination and hatred.

The United Kingdom Supreme Court decision that this refusal does not constitute unlawful discrimination because:

“the objection was to the message and not to any particular person or persons” is the wrong decision. Professor Johnson from University of York notes “it is wrong because it fails to uphold UK law designed to protect people from discrimination on the grounds of sexual orientation”.

Around 2,500 years ago, Pericles, the Greek statesman, orator and general of Athens wrote on Athenian democracy that: “We do not say that a man who takes no interest in politics is a man who minds his own business; we say that he has no business here at all.” Gareth Lee embodies only what Pericles would say is a participant in Athenian democracy – he is a human being who embodies the political.

In any other region of the United Kingdom, a cake with the message “Support Gay Marriage” would not be considered an extraordinary political act; it is merely because of the Northern Irish dominance of ‘othering or the accentuation of differences of the LGBTQ+ community by those who use religious language to legitimise creating a group from whom rights can be withheld as they do not represent ‘ideal normative behaviour’. LGBTQ+ people have been politicised by the ‘othering’ process, so it is wrong for the Supreme Court judges to ignore the provision in the Equality Act (Sexual Orientation) Regulations (Northern Ireland) 2006 where:

a person (“A”) discriminates against another person (“B”) if […] on grounds of sexual orientation, A treats B less favourably than he treats or would treat other persons”.

As Professor Johnson notes, the key phrase here is “on grounds of sexual orientation”. The law does not say “on grounds of the sexual orientation of the person seeking to purchase the goods”. The law simply says that a person must not be treated less favourably “on grounds of sexual orientation”.  It is impossible for an LGBTQ+ person in Northern Ireland not to embody the political when doing simple day to day tasks when a group of political elites or the well financed Christian Institute decide that heterosexism which assumes that heterosexuality is good, natural and the norm whilst homosexuality is immoral, deviant and unnatural must dominate the political sphere and human and civil rights.

If Gareth Lee had asked for a cake which celebrated the ‘normative’ view of marriage, he would have received the cake. Equality in a democracy – not a theocracy (no matter what the political elites is in Northern Ireland think is the case) should be fought for, so the Equality Commission of Northern Ireland was absolutely right to take this case. 

Forebodingly, in March 2010, the DUP published “Empowering Faith Groups: Discussion Paper on how Stormont can collaborate with the faith sector” to allow “input into broader Executive issues” and by 2015, DUP MLA Paul Givan sought to introduce a ‘conscience clause’ into Northern Ireland equality law that created a legal exemption on the grounds of religious belief. In discussing the overtly discriminatory nature of the ‘Conscience Clause’, Dr Wardlow, Chief Commissioner of the Equality Commission said: 

“We believe that, if introduced, the proposed amendments would significantly weaken protection against discrimination in Northern Ireland for lesbian, gay and bisexual people when accessing goods, facilities and services or buying or renting premises [and that] these exceptions are targeted solely on the rights protected by the sexual orientation regulations and no equivalent provisions are proposed for other areas of equality law”.

And, as QC Daphne Romney summarises:

“When consulting on the 2006 Sexual Orientation Regulations, the Government took note of the objections that non-profit religious organisations should have an exemption on the basis of religious ethos, but did not extend that exemption to ‘Christian businesses’, which it said could be used as a mask for discrimination. Despite that rejection, the Supreme Court has given all businesses the right to opt out of supplying services if it disagrees with the message a customer wants to convey.” 

The ‘mask of discrimination’ has been given a new lease of life across the United Kingdom by a Supreme Court that fails to understand the nature of homophobic discrimination. It must be challenged legally, if not in this case then in every single instance of discrimination that arises from this decision.

In Northern Ireland, we must show our solidarity and respect for Gareth Lee and the Equality Commission of Northern Ireland and for each and every person who doesn’t give up, and who keeps fighting hatred, intolerance and discrimination.

Claire Mullaly is a trade unionist from Belfast and an LGBTQ+ activist. 

Follow Claire on Twitter (@ClaireMullaly)