Contract law is "at the heart" of the so-called gay cake case, a lawyer acting for the Equality Commission and Gareth Lee in the civil action against Ashers Baking Company has contended.
Robin Allen QC argued that Ashers, which is run by the McArthur family, rejected the order for the cake for "subjective" reasons that undermined "the whole of contract law".
Mr Allen is representing the commission and gay rights advocate Mr Lee who are taking a case against Ashers bakery for refusing to bake a cake featuring an image of Bert and Ernie and bearing the message “Support Gay Marriage”.
David Scoffield, QC for the McArthurs, earlier on Monday argued that putting the message on the cake was an act of promotion. The McArthurs were being asked to promote a cause which was "fundamentally inconsistent with their deeply held beliefs", he said.
“Promoting something with which they fundamentally disagreed was a step too far,” he added.
Mr Scoffield as precedent cited a Canadian case where a printer was told he must carry out an order “except where material was held to be in conflict with core elements of his religious beliefs”. The lawyer then gave four examples of cases where he contended it would be unfair for certain people to be expected fulfil particular contracts.
He said if the plaintiff was correct then a Muslim baker could not decline an order for a cake featuring a “cartoon of the Prophet”. An atheist baker could not reject an order that had a message stating as a scientific fact that “God made the world in six days”.
A gay baker could not decline an order for a cake stating “gay sex is an abomination” and should be “criminalised”. A Catholic baker could not say no to an order for a cake with the message stating “abortion on demand should be legalised”.
Mr Scoffield said that in relation to Mr Lee’s cake the McArthurs were being “associated with the message”.
Mr Allen, dealing with two of the examples, said that such a Catholic baker could only reject the “support abortion on demand” order if the terms and conditions of the company stated it did not bake cakes that “touched on medical services”. He said a Muslim could only reject the cartoon of the Prophet if its terms and conditions were that it refused all cartoons orders.
Contract law was “at the heart of the case”, said Mr Allen. He said the law required certainty and was not about people holding “subjective” beliefs.
If a contract could be broken for a subjective reason, such as a person holding a view on gay marriage, then the “law becomes entirely fragile”, he said. It would “undermine the whole of contract law”.
Mr Allen also rejected the argument that the case was about the message on the cake rather than the sexual orientation of Mr Lee. The fact that the cake was to contain the message “Support Gay Marriage” and was ordered on behalf of the gay rights group QueerSpace meant that Mr Lee “was likely to be gay”.
“It could not be more obvious that this is about sexual orientation,” said Mr Allen. If the message had been “support heterosexual marriage” the order would have been carried out. “But for the word ‘gay’ this order would have been fulfilled,” said Mr Allen.
“I emphasise that at no point were /[the McArthurs/] being asked to support Mr Lee’s message on the cake,” he added.
Judge Isobel Brownlie reserved judgment.
Outside the court, the general manager of Ashers, Daniel McArthur (25), thanked people who had supported the family. “It has been a stressful time for our family but most of all we are thankful God has sustained us through it all and we now await the verdict and the outcome from the judge,” he said.
Mr Lee made no comment.
The Equality Commission had originally set aside up to £33,000 to cover the cost of supporting Mr Lee. That figure, according to the commission, has now increased to £40,000 due to the case running into a third day when it was originally expected to last just two days.
The Christian Institute, which is supporting the McArthurs, said its costs were likely to be in line with the commission’s.
