The Gay Cake Case: What the Supreme Court Did, and Didn’t, Decide in Ashers

Abstract

The Supreme Court got it right in the Ashers (‘Gay cake’) case. It decided correctly the important legal issues central to the case: the scope of indissociability; the scope of ‘associative’ discrimination in sexual orientation goods and services discrimination claims; whose characteristics are relevant for determining whether an action amounts to unlawful discrimination; and the extent of the protection which freedom of expression accords individual service providers and companies from ‘forced’ or ‘compelled’ political and religious expression. Much of the critical commentary that followed the case is overblown. In some respects, the case is somewhat less legally significant, and less legally controversial, than the commentary would suggest. Underlying some of the resistance to the decision is a sense that the Court should have manipulated the legal test of unlawful discrimination to reach a morally satisfying result. This is not how the Court should decide such cases, leading as it does to a severe rupture with the idea of legality and the Rule of Law. In any event, the three (moral) arguments that are drawn on—dignity, equality, and conscience-scepticism—are less helpful that might appear in addressing Ashers-type cases, and do not undermine the normative foundations of the Supreme Court's decision.