By Daniela Ellerbeck, Legal Advisor for FOR SA
In two important decisions spanning the Atlantic this year, the Supreme Court of the United States (SCOTUS) and the United Kingdom Supreme Court (UKSC) considered the conflict between sexual orientation rights and religious freedom rights. Ironically, both cases involved bakers.
The question before the court in the Masterpiece case (before SCOTUS) and the Ashers case (before the UKSC) was identical, namely whether it is unfair discrimination for a bakery to refuse to supply a cake supporting or promoting gay marriage because of the sincere religious belief of the (Christian) owners that gay marriage is inconsistent with Biblical teaching and therefore unacceptable to God.
The outcome of these cases, both of which were decided in favour of the (Christian) bakers, (should) have positive implications for living out one’s faith in South Africa.
The Masterpiece Cakeshop judgment was the first of the two ground-breaking judgments. The facts of the case were as follows: In 2012, a gay couple visited Masterpiece Cakeshop in Colorado, owned by Jack Phillips, to order a cake for their same-sex wedding. Jack explained to the couple that, although he was prepared to sell them any other kind of cake, unfortunately he cannot create cakes for same-sex weddings. For Jack, to do so, would be to give his personal endorsement to, and effectively participate in celebrating, something which is contrary to his most deeply held beliefs. In a nutshell, it was the “kind of cake, not the kind of customer, that mattered” (as Justice Gorsuch put it).
The couple filed an unfair discrimination complaint against Jack in terms of the State’s Anti-Discrimination Act (which is Colorado’s equivalent to South Africa’s Equality Act) with the Colorado Civil Rights Commission, who found Jack guilty of unfair discrimination based on sexual orientation. This decision was upheld all the way up to the Colorado Court of Appeals.
SCOTUS, the highest court in the United States, agreed to hear Jack’s appeal and was faced with the difficult task of protecting LGBT people’s right to equal access to goods and services (i.e. the fundamental right to equality), while simultaneously protecting the free exercise of religion (i.e. the fundamental right to religious freedom) of people who have religious and philosophical objections to same-sex marriage.
In a victory for Jack, the seven-judge majority reversed the decision of the Colorado Court of Appeals. Their reason for doing this, was because they held that Jack’s case was never heard in an unbiased forum. (To explain: in America, the First Amendment guarantees that laws must be applied in a way that is neutral towards religion. The federal states therefore have a duty to not base laws or regulations on hostility to any religion or religious viewpoint.)
Having found blatant evidence of hostility and bias against Jack and his sincere religious convictions and beliefs, all the way up from the Colorado Civil Rights Commission through to the Colorado Court of Appeals, SCOTUS concluded that Jack’s right to have the Commission (and indeed, the Courts) proceed in a manner that was neutral and tolerant towards his religious beliefs, had been infringed. Importantly, SCOTUS held that the government has no role in deciding (or even suggesting) that a person’s religious convictions are legitimate or illegitimate, further stating that:
“the Constitution protects not just popular religious exercises from the condemnation of civil authorities. It protects them all.”
Less than a month after the Masterpiece judgment, Jack was sued again – this time for refusing to bake a cake celebrating a gender transition from male to female – by the same civil rights commission, clearly indicating an agenda.
In another seminal victory for religious freedom, the UKSC in the Ashers judgment went even further than SCOTUS in the Masterpiece judgment and confronted the conflict between sexual orientation rights on the one hand, and religious freedom rights, head-on.
The facts in this case were as follows: The McArthurs are Christians who own a bakery business (‘Ashers Bakery’) in Northern Ireland. In May 2014, a gay customer placed an order for a cake iced with the words ‘Support Gay Marriage’. The McArthurs advised the customer that, because of their Christian convictions and beliefs, they could unfortunately not make this cake for him. The customer, supported by the Equality Commission for Northern Ireland, sued the McArthurs for unfair discrimination based on sexual orientation. The County Court agreed that it was unfair discrimination, as a result of which the McArthurs appealed to the Court of Appeal but was unsuccessful. They then appealed to the UKSC, which is the highest court in the United Kingdom.
The UKSC ruled that the McArthurs’ objection to baking the cake, was because of the ‘Support Gay Marriage’ message on the cake, not because of the customer’s sexual orientation. Simply put, the McArthurs’ objection was not to the fact that the customer was gay, but that the customer required them to promote a message that was against their deeply held religious beliefs.
The UKSC ruled that the McArthurs’ rights to religious freedom and to freedom of expression, included the right not to be obliged to express beliefs they did not hold. The UKSC ruled that the McArthurs could not be forced to supply a cake iced with a message with which they profoundly disagreed.
THE IMPORTANCE OF MASTERPIECE AND ASHERS FOR SOUTH AFRICA:
Increasingly, Christian business owners in South Africa are being investigated by government commissions (including the South African Human Rights Commission (SAHRC), and the Commission for Gender Equality (CGE)) and indeed the courts, for refusing to provide goods or services that conflict with their sincere religious convictions and beliefs e.g. to host or otherwise participate in same-sex weddings.
In this regard, under the South African Constitution, the State may not unfairly discriminate against anyone on prohibited grounds, including specifically “religion, conscience and belief”. In addition, the Constitution also specifically protects freedom of religion, belief and opinion as a fundamental human right, and further places a duty on the State to respect, protect, promote and fulfill the rights in the Bill of Rights, including therefore freedom of religion.
Also in terms of the Constitution, when interpreting the Bill of Rights, a court, tribunal or forum “may consider foreign law”. As such, Masterpiece and Ashers may be referenced and relied on in South African courts where the freedom of Christian business owners to operate their business in accordance with their religious beliefs, is at stake. Masterpiece is a stern warning to government not to adopt a position of bias or hostility against people of faith, and Ashers shows that no believer (and indeed, no person!) should not be forced to support a message which goes against their religious beliefs and convictions.
 In Masterpiece Cakeshop the couple’s order was for a wedding cake for a same-sex wedding, while in Ashers the order was for a cake with the words “support gay marriage”.
 The First Amendment reads as follows: “Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof; or abridging the freedom of speech, or of the press; or the right of the people peaceably to assemble, and to petition the government for a redress of grievances.”
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