Hands On Originals and Ashers Baking.

An interesting week in commercial religion.

In the United Kingdom, it has been confirmed that Ashers Baking, and the family who own it, will be taking their case to the Supreme Court, having been unsuccessful in the NI County Court and Court of Appeal. If initial arguments before the Supreme Court are accepted, the case will be heard in October 2017. The Christian Legal Institute is supporting the appeal, which it will be recalled turned on the refusal by a bakers to make a cake celebrating same-sex marriage, on the basis that to do so would be incompatible with their religious beliefs. 

Ashers raises two important issues for commercial religion, only one of which has received much in the way of discussion so far. Firstly, to what extent can claims to manifest religion under ECHR Article 9 be raised by human traders and service providers, despite their working in the commercial sphere? The NI County Court, and NI Court of Appeal, recognised that such claims can be brought, but found restrictions justified by reference to Article 9(2), and in particular the rights of others. This balancing issue is likely to remain an important part of any substantive Supreme Court hearing. Secondly, to what extent can for-profit limited liability companies claim religious rights under Article 9? The County Court very briefly dismissed this, with Brownlie J citing Kustannus Oy Vapaa and Others v Finland as evidence that "it has long been recognized in Convention jurisprudence that a limited company cannot invoke Article 9 rights" (at para.98). Kustannus does not support this, as it is clear that not for profit limited companies with religious objects are capable of invoking Article 9, but it does support the idea that a "profit-making corporate body" cannot invoke Article 9. There is not, however, a strong line of authority on this point either before Kustannus or since. The issue was not discussed at all by the Court of Appeal, and it will be interesting to see if it is developed in the Supreme Court. 

One argument put to the NICA was that Ashers and its owners would, if required to provide the decorated cake requested, be forced to speak contrary to their religious beliefs. The Canadian case of Brockie v Ontario Human Rights Commission [2002] 222 DLR (4th) 174 was discussed, but it was not seen as applying to the UK scene, and to this case in particular. A recent US case, supported by the Becket Fund, has returned to this idea of commercial provision of expressive services. On the 12th of May, in Lexington Fayette Urban County Human Rights Commission and Aaron Baker for Gay and Lesbian Services Organization v Hands On Originals Inc, the Kentucky Court of Appeals distinguished a printing service asked to print slogans on t-shirts from a bakery asked to bake a generic cake which would be used to celebrate a same-sex marriage (citing Craig v Masterpiece Cakeshop Inc, 370 P.3d 272). Kramer CJ for the Court of Appeals stressed the expressive nature of the service requested, printing t-shirts with slogans for the Lexington Pride Festival, concluding "Nothing in the fairness ordinance prohibits HOO, a private business, from engaging in viewpoint or message censorship. Thus, although the menu of services HOO provides to the public is accordingly limited, and censors certain points of view, it is the same limited menu HOO offers to every customer and is not, therefore, prohibited by the fairness ordinance". If the distinction drawn between Craig and Hands On Originals becomes important in the Supreme Court, then the icing on the cake may become more than a mere ornament to the case.