David Scoffield QC yesterday set out a series of arguments which attempted to place the case as having major implications for many businesses — not just the gay or Christian communities.
After the plaintiff’s case had been robustly made by Robin Allen QC the previous day, Mr Scoffield argued that if the Equality Commission case — which as set out in court has been that religious “scruples” have no place in commerce — succeeds, the established rules of business will be radically redrawn,
The Belfast barrister contended that in such a scenario, the choice facing business people such as the McArthurs would effectively be “between operating their business and being true to their beliefs”.
But he sought to broaden the argument even beyond people of faith, saying that for businesses to be forced “on pain of being taken to court if they refuse” to produce something which is deeply offensive to the conscience of their owners had wider implications for all businesses — irrespective of their personal views.
He said that to do so “leaves no space for genuine disagreement” and “it would allow the vexatious or the malicious to stir up trouble” by requesting goods or services which they know will be refused, though he made clear that there was no suggestion that was the case with Mr Lee.
In his cross-examination of Karen McArthur yesterday morning, Mr Allen pressed her on whether Ashers would actually be endorsing the campaign for gay marriage if it had made the cake.
He asked her whether the company would be endorsing a football team by making a cake for them — even if lots of Ashers’ staff supported that team’s rivals.
The previous day Mr Allen had argued that the law is utterly clear that businesses cannot turn down custom based on “religious scruples”.
But yesterday Mr Scoffield took issue with the characterisation of Ashers’ beliefs as ‘religious scruples’, saying that the phrase “does not begin to describe the seriousness” with which the European Convention on Human Rights regards religious belief and conscience.
Although there are several fall-back positions being argued by both sides, the case essentially comes down to whether by turning down a cake with the slogan ‘support gay marriage’ the bakery unlawfully discriminated against Mr Lee on the grounds of his sexual orientation and/or his political opinion.
The bakery argues that it did not know that Mr Lee was a gay man — and that does not seem to be in dispute — and would have refused the same order even if it had been placed by a heterosexual individual who happened to oppose same-sex marriage.
Mr Scoffield said: “We say this isn’t a sexual orientation case at all...if anything, it’s a political belief case.”
But Mr Lee’s QC argued that it is wrong to equate the act of making and decorating the cake with endorsement of the message on the cake. And, even if it did, he argued, the law does not allow for businesses to use religious defences for discrimination.
As he began the cross-examination of each of the three members of the McArthur family yesterday, Robin Allen QC was at pains to emphasise that he was not attempting to probe their faith, but simply to elicit facts.
But in each case, it quickly became clear that it was almost impossible to do so in the context of this case.
Karen, Daniel and then Colin McArthur each told the court that their faith is fundamental to how they live their lives and, by extension, their business.
Karen McArthur was the first to make the long walk from where the family were seated together to the witness box in the far corner of the large courtroom which was used for the case due to the high level of public and press interest in the case.
Mrs McArthur, who founded the company with her husband Colin more than two decades ago, spoke softly and in short sentences in response to questions from the two QCs.
She said that she seeks to “live at all times in accordance with the doctrines and teachings of the Bible”.
She went on: “I love the Lord and seek to please him in the way I live my life,” and explained how that belief translated itself into cancelling the order. “The problem was just with the message on the cake because as a Christian I do not support gay marriage.”
She candidly admitted that she knew little about the detail of equality law.
Many business owners would probably be similarly ignorant of the nuances of that law in restricting which customers they can decline to serve.
But if Mr Scoffield is right — and Ashers lose the case — a lot of them may needing to familiarise themselves with it.