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The ‘Gay Cake’ ruling

Thanks to Peter Ould for this guest post on the judgement in the Ashers Bakers case:


ashers-image-hqThe judgement on the private case in Northern Ireland between Gareth Lee (from Queerspace) and Ashers Bakers has been delivered and it’s an absolute corker.

Some background first. This private case (not a criminal case so any talk of the defendants being found “guilty” is incorrect) centres around the refusal of Ashers Bakers to bake and decorate a cake with the slogan “Support Gay Marriage”. The plaintiff, who had previously bought baked items at Ashers (and this will become relevant later) placed the order initially on the 9th of May, but only came in with the actual design on the 12th. It was at this point the order was refused. The plaintiff claimed that he had been discriminated against on the grounds of his support for gay marriage and his sexuality. In their defence, the bakers claimed that they were unaware of the plaintiff’s sexuality and that the decision to turn down the order was based solely on the political campaign that was involved (to legalise gay marriage in Northern Ireland).

None of this is disputed. What I now want to do is focus on some key paragraphs in the judge’s ruling and then to add one more reflection around the nature of defence in this and similar cases.


The first point in the ruling where the judge makes a judgement is paragraph 39. Here Judge Brownlie writes,

I find, on the evidence before me, that the Defendants did have the knowledge or perception that the Plaintiff was gay and /or associated with others who are gay. The reasons for this finding are that the Defendants must have known that the Plaintiff supported gay marriage and/or associated with others who supported gay marriage as this was a cake for a special event the Plaintiff was attending; it was known to the 3rd Defendant that the Plaintiff was a member of a small volunteer group; he wanted his own graphics on the cake; those graphics included ‘support gay marriage’ together with a reference to ‘QueerSpace’ and the 3rd Defendant was aware of the ongoing debate on same-sex marriage. Furthermore, although from her own evidence she said that she didn’t think “perhaps we have to do it” [meaning complete the order], it is clear when she discussed the issue with her son on the Sunday, she mentioned that there may be litigation.

I agree with the judge here – it is at least reasonable that the defendants might have suspected that the plaintiff was gay. That said, none of what follows is necessarily contingent – just because I know (or presume) that someone is gay, doesn’t necessitate that I will discriminate on that basis.

The next paragraph that requires comment is paragraph 42.

In applying the reasoning from the authorities cited, it is my view that, if a comparator is required, the correct comparator is a heterosexual person placing an order for a cake with the graphics either “Support Marriage” or “Support Heterosexual Marriage.”

What is required is proof of a factual matrix of less favourable treatment on the ground of sexual orientation and not the motive. I regard the criterion to be “support for same sex marriage” which is indissociable from sexual orientation. There is also an exact correspondence between the advantage conferred and the disadvantage imposed in supporting one and not the other.

2852681833This ruling beggars belief. Is the judge seriously suggesting that all gay people support gay marriage? Is support for same sex marriage really indissociable from sexual orientation? This seems to be an assertion that is demonstrably untrue in that there are plenty of LGB people who do not support the introduction of gay marriage. This argument is used to reject the comparison that Ashers would have refused the order if placed by a “straight” person but it seems specious at best. Clearly there are grounds for appeal on the basis of a basic point of information, that sexual orientation and support for same-sex marriage are not indissociable at all.

Now we turn to paragraph 43,

My finding is that the Defendants cancelled this order as they oppose same sex marriage for the reason that they regard it as sinful and contrary to their genuinely held religious beliefs. Same sex marriage is inextricably linked to sexual relations between same sex couples which is a union of persons having a particular sexual orientation. The Plaintiff did not share the particular religious and political opinion which confines marriage to heterosexual orientation.

I discussed this point on previous rulings in this area. If same sex marriage is by its nature a union of people having a particular sexual orientation, does that mean that other sex marriage is also by its nature a union of people with a particular sexual orientation (namely heterosexuality)? The judge seems to think so. If we can find numerous examples of other sex marriages between couples where one or even both partners have a homosexual orientation, does the whole premise that same-sex marriage is a “gay thing” also fall apart? And note, there is nothing wrong in a ruling that argues that same-sex marriage would predominantly appeal to those of a homosexual orientation, but that is not the same as saying that it is an institution only entered into by those of a homosexual orientation (and vice versa for other sex marriage). This ruling seems to go beyond previous judgements that have taken the “reasonable to presume” argument and instead infers a direct and exclusive link between sexual orientation and marriage (other sex and same sex). As above with paragraph 42, the judge seems to consider a point of fact that all those of a homosexual orientation desire same sex, not other sex marriage.

Furthermore, the statement “Same sex marriage is inextricably linked to sexual relations between same sex couples which is a union of persons having a particular sexual orientation” makes absolutely no sense in the Northern Ireland context. In the Province same sex marriage is not legal and proposals to make it so have been defeated three times in Stormont. Same sex marriage does not exist in Northern Ireland. To argue that a view of supporting it or not is grounds for discrimination is tantamount to the judge saying that same sex marriage should be legal in the Province. Given that it is not legal, why should this proposal to change the law be given any preference in the courts over any other proposed legislation? The ruling reads almost as though same sex marriage is legal in Northern Ireland.

One might even suggest (as someone has privately to me this afternoon) that this interpretation of the law and the test the judge applies in paragraphs 42 and 43 would make it illegal to vote against same sex marriage! Certainly this is the kind of thinking, this test, that has driven judicial activism in same sex marriage in the USA.


It’s also worth a quick diversion here into the world of the Church of England. There are some that argue that clergy who enter into a same sex marriage are not necessarily entering a sexual union and therefore not undermining the Church’s doctrine of sex and marriage. Clearly in this case in Northern Ireland assumes that marriage is a sexual union and one predicated in part on sexual desire. One cannot support this ruling and yet argue that clergy entering same sex marriages cannot be presumed to be in a sexual union. That would be, forgive the pun, having one’s cake and eating it.

So far we have seen that the basis for a claim of direct discrimination in this ruling is based in an assumption of the plaintiff’s sexuality based upon his support for same sex marriage. The “indissociable” link between support for same sex marriage and sexual orientation is key to the rejection of the defence that Ashers Bakers would have turned down a similar request from a straight customer. It should be understood that the ruling hinges on this – remove the “indissociable” link and you remove the justification for rejecting the “the sexuality of the person placing the order was irrelevant” defence.

The ruling however then turns to whether the order could have been rejected simply on the basis of it being a political slogan – “Support Gay Marriage”. Here we enter even more disturbing territory in paragraphs 66 and 67.

[66] Have the Defendants directly discriminated against the Plaintiff on the ground of religious belief and/or political opinion contrary to Article 3(2) of the 1998 Order? I find that they have. Applying the reasoning in Gill v NICEM, the 2nd and 3rd Defendants disagreed with the religious belief and political opinion held by the Plaintiff with regard to a change in the law to permit gay marriage and, accordingly, by their refusal to provide the services sought, treated the Plaintiff less favourably contrary to the law. If the Plaintiff had chosen graphics which said “support heterosexual marriage” or “support marriage” or if a heterosexual had ordered a cake with graphics “support heterosexual marriage” I am satisfied that the Defendants would have completed the order and would have had every right to do so. It is for the reason that the Defendants objected to the word ‘gay’ as they are totally opposed to same-sex marriage which they regard as sinful that they refused the order.

[67]      If I had been persuaded by the Defendants submission that they were not aware of the Plaintiff’s religious belief and/or political opinion or the religious beliefs and political opinion of those with whom he associates, I would in any event have found that the Defendants discriminated against the Plaintiff and treated him less favourably on the grounds of their own religious beliefs and political opinion – see authorities cited in para  [50] -[52] – the’ Ryder’ case as applied in ‘Gill”.  The Defendants have accepted that the order was cancelled because of their religious beliefs because they are opposed to a change in the law regarding gay marriage which they regard as sinful.

The case Gill cited refers to 1998 Fair Employment and Treatment Order in Northern Ireland which outlaws discrimination against someone on the basis of their political party or ideology. The reason for this in the Northern Ireland context is clear – you need to protect Unionists and Republicans from being refused goods and services simply on the basis of their political loyalty (and rightly so). But is it a correct application of the Order to suggest that any provider of any publication or artwork of any kind must fulfil whatever political slogan they are asked to produce? In the rest of the United Kingdom this is not the case – a printer for example can refuse to produce material for a political party (s)he opposes. In Northern Ireland however that is not the case.


22591975Is this blanket ban on refusing to produce political messaging you don’t agree with really good law? Do we really want a world where an Afro-Caribbean printer is forced to produce posters with the slogan “Repeal the Race Relations Act Now”? Should a bakery owned by a gay couple be forced to make “traditional marriage” cupcakes?

The judge’s application of section 3(2) of the 1998 Order can have no other interpretation. If this ruling is not appealed and overturned then , when cited in future cases, it means that the mere holding of any political opinion, however egregious that opinion is (“Enslave all Black People Now”), entitles a person or organisation to demand of any other organisation that they produce or publish material supporting that cause. One cannot in response argue that the cause being promoted is offensive and contrary to current law and that is why it is refused – how would the court judge between acceptable and unacceptable political opinions? Would “Repeal the Equality Act” become an intrinsically illegal statement? What does that say about the power of any legislature not to be bound by previous decisions of that legislature? What kind of constitutional nightmare is that?

The saying “be careful what you wish for, you may just get it” is apt in this case. If the judge has incorrectly interpreted the law in Northern Ireland then the interpretation needs to be overturned on appeal. If the judge has correctly interpreted the law then the Northern Irish law is, my friends, an ass of colossal proportions and some form of reasonable accommodation amendment needs to be enacted sooner rather than later, for without such an accommodation the consequences for any provider of goods and services in Northern Ireland are obvious.


One final thought. The defence publicity around this case has centred on the “right” of the bakers to discriminate on the basis of their religious beliefs – Paragraphs 14 and 15 lay out the religious basis for the refusal to bake and decorate the cake. In reality, this case has nothing to do with religious belief and everything to do with political beliefs and so the use of religious belief in the support of the defendants is counter-productive. That the political belief (“no to same sex marriage”) is predicated on a religious foundation is irrelevant to the decision not to provide the goods and services – an atheist opposed to same sex marriage might very well have made the same decision on political grounds.

new-peterThat being the case, why was this case framed in a “religion vs sexuality” basis? There seems an alarming trend with the Christian Institute and Christian Concern to get this conflicting rights paradigm in the public imagination, even at the cost of justice for their clients. Wouldn’t it be better to simply defend their clients with the best possible argument, rather than a political defence attempting to raise consciousness of “competing rights”, especially in a case where one of those competing rights (religion) is utterly irrelevant to the issue at hand?


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43 Responses to The ‘Gay Cake’ ruling

  1. Ian Scott-Thompson May 20, 2015 at 8:14 am #

    I agree especially with the last paragraph: it seems strategically bad to emphasize religion, when the objection was to the campaign slogan. As you say, will businesses now be forced to accept any slogan, in order not to discriminate?

    If you expect the bakers to guess the plaintiff’s sexuality, might you not also expect them to realize that this was a politically provocative request, designed to provoke a court case and media storm? Please, Judge, how should one respond, if such a mischievous order is placed?

    It seems not irrelevant to me, that gay marriage is currently not legal in NI. So the bakers are being forced to campaign for something currently illegal (as opposed to a campaign, say, for equal pay for women, which is not illegal). That seems nuts to me.

    Also, up in “paragraph 42”, there are plenty of straight people who do support gay marriage. It’s clear that orientation and support for the gay marriage campaign are not indissociable.

  2. James May 20, 2015 at 8:19 am #

    Is support for same sex marriage really indissociable from sexual orientation? I would agree the answer is no because plenty, probably a majority, of straight people also support same sex marriage.

    • Ian Paul May 20, 2015 at 9:45 am #

      And in the church we keep forgetting that a good number of gay-rights campaigners oppose marriage in all its forms…unless used as a stick to beat those they disagree with.

      • Clive May 25, 2015 at 1:36 pm #

        Our deanery held a meeting on SSM. More than 400 people attended.
        The majority feeling was that the natural family DOES matter and marriage is not about the wants and desires of the adults but about the needs of the children.

        This was the Church in Wales.
        A vote was taken in the end.
        96% were against Same-Sex Marriage services in Church.
        74% were against Same Sex Blessings in Church (only 22% in favour, the rest abstensions)

        The Judge in the NI case completely ignored the United Nations Declaration of Human Rights article 18 which nowhere includes the reference to “Religious organisation”, in the word “alone” in article 18 makes any thought of “organisation” silly.

        The British government (which includes NI) is a FULL signatory to the United Nations Declaration of Human Rights, so there are NO reservations.
        Article 18 includes practice of religion in PUBLIC.

        Yet this Judge felt she can ignore the United Nations Declaration of Human Rights completely.

        • David Shepherd May 27, 2015 at 8:12 pm #

          Clive,

          The European Convention on Human Rights (ECHRts) was established to give effect to the United Nations Declaration of Human Rights and is the basis for any European legal interpretation of it.

          Over and over again, cases like these hinge on what qualifies as a valid manifestation of belief. As Article 9(1) of the ECHRts states:

          ‘Everyone has the right to freedom of thought, conscience and religion; this right includes freedom to change his religion or belief and freedom, either alone or in community
          with others and in public or private, to manifest his religion or belief, in worship, teaching, practice and observance.’

          The law prioritises those aspects as central to the expression of religion. The judge, while treating the McArthur’s actions inspired or encouraged by it as opinions that are unworthy of protection in European democratic society.fo the most part, restricted to externalisms, such as freedom to organize and attend religious services, or opt out of certain secular responsibilities, such as national service.

          Of course, this view is in blatant contradiction to the scripture. Christ claim that our Father seeks those who ‘worship in spirit and in truth’. St. Paul also exhorts ‘offer your bodies as a living sacrifice, holy and pleasing to God–this is your true and proper worship.’

          The McArthurs echoed this by stating: ‘Individually and as a family we decided that what was to be on the cake was against our Christian beliefs …We could not promote same-sex marriage because it is against God’s word.’ In so doing, they aligned themselves with scripture, but against the legislative contempt of secular society for holistic worship in spirit and truth.

          In these situations, we should remember St. Paul’s words:

          ‘Therefore, since we are surrounded by such a great cloud of witnesses, let us throw off everything that hinders and the sin that so easily entangles. And let us run with perseverance the race marked out for us, fixing our eyes on Jesus, the pioneer and perfecter of faith.

          For the joy set before him he endured the cross, scorning its shame, and sat down at the right hand of the throne of God. Consider him who endured such opposition from sinners, so that you will not grow weary and lose heart. In your struggle against sin, you have not yet resisted to the point of shedding your blood. (Heb. 12:1 – 4)

          • Clive May 27, 2015 at 9:04 pm #

            Dear David,

            You quoted Article 9(1) of the ECHRts and STILL it didn’t say Religious Organisation anywhere.

            The reality is that the British government is a signatory of the United Nations Declaration of Human Rights irrespective of trying to muddy the waters with any ohter treaty. The British government has never applied to the United Nations to withdraw its signature. Therefore it is inexcusable for the judiciary to simply ignore it. It makes the British government a liar and its signature worthless.

            The UN Declaration of Human Rights stand and sadly we have to really fight for it to even be respected.

          • David Shepherd May 27, 2015 at 11:36 pm #

            I meant to write:

            The law prioritises those aspects [worship, teaching, practice, and observance] as central to the expression of religion.

            The judge, while treating the McArthur’s actions as inspired or encouraged by religion, considered their beliefs to be mere opinions that were unworthy of protection in European democratic society.

            For the most part, manifestations of belief are restricted to externalisms, such as freedom to organize and attend religious services, or to opt out of certain secular responsibilities, such as national service.

          • Clive May 28, 2015 at 6:17 am #

            Neither the UN declaration of human rights nor the ECHRts uses the phrase “religious organistion”. Both use words that apply to individuals.

            Thank you for the reply but it doesn’t change my point at all.

          • David Shepherd May 28, 2015 at 8:05 am #

            Clive,

            To conclude: I get your point that relates to the judge’s statement that ‘[35] The Defendants are not a religious organization; they are conducting a business for profit notwithstanding their genuine religious beliefs and in accordance with Regulation 16[2] are not therefor exempted by the Regulations.’ I also think (or hope) we’re on the same side in decrying the judge’s very narrow interpretation of religious exemption.

            So, the Regulations themselves do not provide the protections that should have been afforded as a consequence of being co-signatories to UNDHR and ECHR. But the question is why? And that’s revealed through the debates during the Bill’s passage through Parliament.

            The Church restricted its efforts to the pursuit of exemptions for religious organisations (as it did for the same-sex marriage act 2013)

            So, despite the wording of the United Nations Declaration and talk about religious freedom, the CofE stood with the State for exempting only religious organisations from the Regulations, and not religious individuals, like the McArthurs, as well.

            Yet, for all this, the Mission and Public Affairs (MPA) Division seeks £1.3 million of the £9.9 million for National Church support (Vote 2) requested from the dioceses in the 2015 Archbishops Council budget, as part of its remit to: ‘Continue to support and resource the Lords Spiritual, including induction for new Lords Spiritual, briefing on Bills, building Parliamentary relationships and setting up clusters around key issues.’ (page 24 – https://churchofengland.org/media/2010566/gs%201959%20-%20the%20archbishops%20councils%20budget%20for%202015.pdf )

            Perhaps, in Autumn, our fresh crop of General Synod representatives will campaign for the MPA to use its funds to support and resource the fight for the religious freedom of UK citizens, like the McArthurs, instead of just abroad.

  3. Simon Nicholls May 20, 2015 at 8:34 am #

    Thank you Peter and Ian. There seems to be an awful lot of muddled thinking about this, not least on social media. Thank you for making the clear distinction between the religious and political aspects of this case. This decision, though based on NI rather than English law, should be worrying whatever ones political (or religious/non-religious) persuasion.

  4. James Byron May 20, 2015 at 9:36 am #

    Thanks for that detailed analysis, Peter. Work you’ve put in is much appreciated.

    I do think you’re reading way too much into the connection the judge drew between sexual orientation and same-sex marriage. The judge is merely saying that it’s reasonable to suppose that a refusal to produce the message was related to sexual orientation (it just has to be discrimination on that basis, even if the baker didn’t believe that the plaintiff was gay). I doubt he went into the logical minutiae you’ve detailed, impressive and imaginative as they are.

    Since this case is focused narrowly on the provision of goods and services, I see no reason to believe that this has any implication whatsoever for general opposition to equal marriage, which is as legal today as it was yesterday.

    • Ian Paul May 20, 2015 at 9:44 am #

      But James, note what Andrew Brown says on Facebook: ‘The crucial question seems to be what would have happened if I, as a straight supporter of ssm, had ordered the cake. I believe that the bakers would have rejected it, and that the law should uphold their right to do so. In that case, the discrimination is clearly not on the grounds of my sexual orientation.’

      So this judgement is relatively clearly incoherent. Note also that the plaintiff was already a regular customer, which was acknowledged in court.

      • James Byron May 20, 2015 at 10:00 am #

        It appears that Brown’s misunderstood the regulations: they prohibit “discrimination on grounds of sexual orientation,” not just discrimination against gay people. Brown’s sexuality isn’t the deciding factor; the grounds used to discriminate are.

        The judgment’s perfectly coherent: it’s illegal to discriminate on the basis of sexuality; the defendant was found to have discriminated on that basis; therefore, the defendant loses.

        • Peter Ould May 20, 2015 at 10:35 am #

          James,

          You strike to the heart of the peversity of this ruling. If a straight person unconnected with any gay rights movement orders a cake with “Support Gay Marriage” and it is illegal to refuse that on the grounds of sexual orientation, then that implies there is something intrinsically connected between being gay and wanting to have gay marriage. That is a nonsense.

          It’s one thing to discriminate against someone because (i) gay marriage is legal, (ii) the person is in a gay marriage, (iii) you refuse to give them the same service you would someone else in a “heterosexual” marriage. But this is not like that. Gay marriage is NOT legal in Northern Ireland and supporting its legalisation should confer you no specific legal rights or moral superiority in the eyes of the law. Clearly in this case such a political position (supporting gay marriage) is aligned (by the judge) with sexual orientation – that is how the first half of the ruling works and it is a factual fallacy. Plenty of us LGB types do not in principle support gay marriage (even if we support Civil Partnerships as achieving legal rights equivalence with marriage).

          This aspect of the judge’s ruling is fallacious.

          • James Byron May 20, 2015 at 10:53 am #

            Peter, the ruling doesn’t say that “gay person = supporter of equal marriage,” merely that same-sex marriage is connected to homosexuality (which it obviously is), and therefore, refusing a service on that basis is discrimination on the grounds of sexual orientation. It makes no comment on the views held by gay people.

            The ruling also contains this crucial observation: “If the Plaintiff was a gay man who ran a bakery business and the Defendants as Christians wanted him to bake a cake with the words ‘support heterosexual marriage’ the Plaintiff would be required to do so as, otherwise; he would, according to the law be discriminating against the Defendants. This is not a law which is for one belief only but is equal to and for all.”

            There’s a case to be made that, in the provision of goods and services, all political statements ought to be excluded from discrimination laws; but that’s not the case at present, and isn’t, I think, the crux of your objection.

          • Ian Paul May 20, 2015 at 11:37 am #

            But then, James, as Peter says, it is a political point of view which has rights, and not a person. That is bizarre.

          • James Byron May 20, 2015 at 12:38 pm #

            Rights attach to the person, not a political POV: the right to be free of discrimination just happened to involve a political POV in this instance. It could just have easily have involved, say, the provision of flowers, photography, or a wedding cake for a same-sex marriage.

            The issue here seems to be that political statements ought to be exempted from anti-discrimination laws. As I said, that’s certainly arguable, but in the meantime, judges must apply the law as it stands. Equal marriage is incidental to that issue. We could just as well be looking at a sectarian slab of pâtisserie.

  5. Thomas Renz May 20, 2015 at 10:11 am #

    Your final thought seems to me especially important. It is not only strategically bad to stress the religious aspect but essentially wrong.

    I am not convinced that “indissociable” means that the Judge assumes that every person with same-sex attraction supports “gay marriage,” let alone that only such people support a change in the law. Rather, it seems to claim that in the end there is an unbreakable link between “gay marriage” and a certain sexual orientation.

    I am also not convinced that this means a baker cannot refuse any political slogan, however egregious, although I agree that this gets messy and there are plenty of egregious slogans one could presumably demand at present, certainly if the BNP is legal in NI.

    Do you have chapter and verse for printers being able to refuse producing pamphlets for political parties? Are printers able to refuse facilitating advertisements for strip clubs etc.?

  6. Father Ron Smith May 20, 2015 at 11:41 am #

    Does the bakery offer a public service or not? That might be the relevant question on this over-heated subject matter The point is, the usual service industry motto is: ‘The customer is always right’. Obviously, this wise injunction is not followed by this bakery. The judge, I think, made the correct judgement.

    • Peter Ould May 20, 2015 at 12:51 pm #

      Ron,

      Do you believe that a printer who is gay should be forced to accept and fulfil an order to produce posters with the slogan “Gay Marriage should be Outlawed”?

  7. Christine Q-J (@Quinnjones2C) May 20, 2015 at 12:46 pm #

    I’m pretty bemused and befuddled by this whole thing because I know next to nothing about business law. Are business folk in general obliged in law to do business with all comers?

  8. David Shepherd May 20, 2015 at 9:22 pm #

    I’ve read the judgement and I’m not going to comment on whether our laws should change. The role of the judge was to apply the law as it stands (which he did) and that is what’s missed in most of the replies here.

    As far as the law is concerned, people set up a business in order to supply lawful customers (of every description) with goods and services. Presumably, the motive is to make a profit. The legal position is that, as long as the customer’s purpose and their requirements are lawful, the business should supply those goods and services without any consideration of protected characteristics. There are, of course, several carefully worded exemptions for religious organisations and restrictions on what constitutes a manifestation of belief.

    In this case, Gareth Lee approached the Asher bakery for cake with a slogan on it. They considered the slogan to be inimical to their Christian beliefs and refused. The proof of discrimination hinged on whether any protected characteristic was a consideration that influenced their refusal.

    For a finding of discrimination, it would appear that two main things must have occurred:

    1. C treats A less favourably than B.
    2. The difference in treatment is attributable to C’s consideration of a protected characteristic.

    This means that scope of equality legislation is not limited to prohibiting unfavourable treatment caused by plaintiff A’s particular protected characteristic, such as sexual orientation.

    In respect of goods and services, the law also prohibits any unfavourable treatment stemming from negative consideration of a protected characteristic. So, saying that the Asher’s would have equally refused to bake such a cake for a straight supporter of gay marriage fails to address the Equality Act’s much broader purview.

    Did the Asher bakery’s negative consideration of Gareth Lee’s homosexual orientation prevent them from baking the cake? No.

    Did the Asher bakery’s negative consideration of a homosexual orientation in general prevent them from completing the order that they would have otherwise fulfilled? And, legally, that’s discrimination.

    Here’s where someone will say, ‘but same-sex marriage and homosexual orientation aren’t the same thing’.

    While I do argue the case that race and sexual orientation are categorically different, legally, race is considered to be categorically the same,The legal advantage of black voting rights correlates with race. So, President Botha couldn’t have honestly claimed that his government had accepted racial equality, while allowing the unfavourable treatment of any person who supported black voting rights.

    Similarly, while the McArthur’s are free to campaign against same sex marriage, the law doesn’t permit them to treat its supporters unfavourably.

    Continuing the political analogy, suppose that a number of SNP supporters, disillusioned with their party’s detailed plans for Scottish independence, had bucked the party line and endorsed the ‘Vote No’ campaign in last year’s referendum.

    Regardless of their overall political persuasion, it is nonetheless lawful for them to back their cause. Say, without going into detail, one of them called a local printer (whose manager is, unbeknownst to them, an ardent supporter of Scottish Nationalism) and negotiated a quote for producing 1000 4-page colour pamphlets.

    Later, at the height of the campaign, they arrived at the printer’s office, set down their ‘Vote No’ placards and set about discussing their ideas for the circular. At this point, the manager explained that his political beliefs would make it impossible for the firm to fulfill the order, considering that any help to be tantamount to abandoning his avowed allegiance to independence.

    So, he showed them the door without so much as calling another firm to see whether they might do the print run instead.

    The appropriate comparator isn’t whether the manager would also have refused to print the same pamphlets for a Labour supporter of the ‘Vote No’ campaign. That would imply that the plaintiff’s personal attributes are the deciding factor in discrimination cases.

    Instead, the proper comparator is whether the manager would equally refuse to print ‘Vote Yes’ pamphlets for any campaigner. My belief is that, had the MacArthur’s had refused without explanation, there would have been no evidence of their motivation, which was critical to the decision.

    While Paul’s last comment was a worthwhile moral question, the legal comparator of ‘Support Gay Marriage’ is not ‘Gay Marriage should be Outlawed’. It’s ‘Support Traditional Marriage’.

    • Peter Ould May 21, 2015 at 11:56 am #

      “Did the Asher bakery’s negative consideration of a homosexual orientation in general prevent them from completing the order that they would have otherwise fulfilled? And, legally, that’s discrimination.

      Here’s where someone will say, ‘but same-sex marriage and homosexual orientation aren’t the same thing’.

      While I do argue the case that race and sexual orientation are categorically different, legally, race is considered to be categorically the same,The legal advantage of black voting rights correlates with race. So, President Botha couldn’t have honestly claimed that his government had accepted racial equality, while allowing the unfavourable treatment of any person who supported black voting rights.

      Similarly, while the McArthur’s are free to campaign against same sex marriage, the law doesn’t permit them to treat its supporters unfavourably.”

      But (and this is the key), under this way of thinking no-one can refuse to decorate a cake with the words “Enslave all Black People Now” can they? That’s a political opinion, linked to a protected characteristic (race, of the person who wants the cake decorated). The customer comes in, says “I am white racist, I want this cake making” and straight away the bakery knows the race and the political belief of the person and the moment they refuse, aren’t they discriminating on grounds of race?

      You might argue that there is nothing intrinsically connecting being white and wanting to enslave black people, but if that’s the case, there’s nothing intrinsically connecting being gay and entering a same-sex marriage. That some white people to enslave black people is a fact. That all white people want to do it? Nah. That some gay people want to enter a same sex marriage is a fact. That all gay people want to do it, let alone allow it to happen? Nah.

      This is the problem with the ruling – it opens up a huge can of worms. Did the framers of the 1998 Order really envision protecting any possible political belief, or just Unionists and Republicans being given a fair playing field in the Province?

      • David Shepherd May 21, 2015 at 7:10 pm #

        Peter,

        Firstly, thanks for writing this piece.

        In terms of your example, the deciding factor in determining discrimination would be whether ‘enslave black people now’ is lawfully indissociable from white race.

        As you say, there is nothing that intrinsically connects homosexual orientation to same-sex marriage. But then, neither us there anything that intrinsically connects black voting to black people.

        As you read the judgement, the judge explained the meaning of indissociability.

        In Bressol v Gouvernement de la Commaunite Francaise Case [2010] ECR 1-2735, para 56, [2010] 3CMLR 559:

        “I take there to be direct discrimination when the category of those receiving a certain advantage and the category of those suffering a correlative disadvantage coincide exactly with the respective categories of persons distinguished only by applying a prohibited classification”.

        Apart from the lack of a legitimate purpose, does the correlative ‘advancement’ afforded by enforcing black slavery coincide exactly with the sole distinction of race?

        The answer is no. Black subjugation would prioritise non-racial categories as well. The sole legal benefit of black voting is the political advancement of black people. The legal benefit of same-sex marriage correlates solely with the homosexual orientation characteristic. That’s what the learned judge means when he says they’re indissociable.

        • David Shepherd May 22, 2015 at 1:08 pm #

          As a footnote to my reply, here are some examples of where the law could go.

          Pregnancy and maternity are protected characteristics.

          The right to terminate a pregnancy correlates perfectly with those characteristics. Ergo, if a person (not necessarily a woman) approached a printing firm run someone by Pro-Life advocates to create a ‘Support Abortion Now’ poster and it was refused, it would be held to be direct discrimination.

          The comparator would be whether they would have accepted a commission from a Pro-Life organization to create an ‘End Abortion Now’ poster.

          Marriage and civil partnership are protected characteristics

          Not all people divorce, but the ability to take advantage of divorce correlates perfectly with marital status. Once the appropriate requirements have been met, divorce is a legal right enshrined in law.

          A man approaches a party planner, who happens to be Catholic, for a quote for organizing a surprise party for a couple that he knows. The price is agreed, but a week later, he explains that it’s a divorce party and the planner declines on religious grounds. Again, it’s direct discrimination.

          The comparator is would the party planner have accepted the job to organize a wedding or anniversary party.

          The moral to the story is that the less you say about why you refuse, the more difficult it is for a court to establish your motive for declining.

          Religion and belief

          Should a Muslim publisher be forced to print copies of the Christian Bible? The comparator would be accepting the commission from a Muslim organization to print the Koran.

          Hmm…

  9. Jonathan Hughes May 20, 2015 at 11:57 pm #

    Decisions in law are, by definition, bound by the micro-specifics of the circumstance and the strict interpretation of law and precedent surrounding them. That creates a blinkered view. I see in this circumstance two sets of people desperate to prove a point that they passionately believe in, and I have a lot of sympathy with that (as someone with lots of passionately held beliefs); but I’m saddened that the people involved might see a legal case as “proof” either way that their beliefs are “right”. Winning or losing this case doesn’t seem to me to prove anything. People will fall in love, make life commitments, have sex, bake cakes, and live life. What difference does a law suit make? (For context, if anyone cares, I’m straight, Christian, and support marriage as a faithful, life-long commitment irrespective of the gender of the people involved).

  10. Egghead May 21, 2015 at 9:58 am #

    Thanks Pete, really helpful, especially highlighting the special circumstances of Northern Ireland in this area.

    To my mind though the most worrying aspect of the judgment was this (quoting the analysis from over at Law & Religion):

    “As to the defendants’ argument that Article 10 (expression) meant that they could not be compelled to express or commit themselves to a viewpoint or to appear to give support to another’s views, she concluded that what the defendants had been asked to do “did not require them to support, promote or endorse any viewpoint” and did not engage Article 10 – and her view was that, even if she was wrong in that conclusion and Article 10 was engaged, any infringement of the defendants’ rights was justified under Article 10 (2) because they were prescribed by law, necessary in a democratic society and for the protection of the rights of others [95].”

    If I’m reading this correctly it appears to be saying that the right not to be discriminated against overrides the right not be compelled to express or commit yourself to a viewpoint or to appear to give support to another’s views – in other words, religious considerations aside, non-discrimination can require you to be compelled to express or commit yourself to a viewpoint. Perhaps the judge would nuance this more if she felt the judgment rested on it, but as it stands it appears very illiberal.

    • Alastair Newman May 21, 2015 at 10:49 am #

      But by producing this cake the bakers are no more supporting the cause of legalisation of gay marriage than is a Labour-supporting printer who is commissioned to print leaflets for a Conservative candidate expressing support for that Conservative candidate. Perhaps the bakers *think* that their action in making that cake amounts to support for a cause they disagree strongly with, but really it does not. They are simply carrying on their business and serving the customer.

      • Egghead May 21, 2015 at 11:23 am #

        Well yes, and the judge agreed that Article 10 was not engaged, but the worrying point is where she goes on to say that even if it was then the requirements of non-discrimination justify any infringement of the defendants’ rights. That’s the really illiberal part.

        Having said this, I think it’s still pretty illiberal to argue that people should have to provide services to people however they feel about it, since it treats people as though they are machines or tools and not persons with beliefs, convictions and consciences – they very thing liberalism is supposed to respect and protect.

  11. Saint Sean May 21, 2015 at 10:55 am #

    It appears that this judge is not fit for purpose. I truly hope that there is an appeal and this specious ruling is overturned.

  12. Father Ron Smith May 21, 2015 at 11:25 am #

    Despite all the flummery produced by Mr. Ould, the Law is the law and it has been pronounced. Anyone providing a public service for money to the public has to abide by laws against discrimination. The discrimination here may not be against a person’s sexual orientation, but that begs the question about the actual reason, then, for refusing to supply a service that should be available according to the law. There are no swear words in the requested cake decoration. The baker’s refusal to use the wording requested amounts to sheer discrimination against a reference to a class of people who are entitled to receive a commercial service, irrespective of the religion, race or sexual orientation of the would-be customer.

    • Peter Ould May 21, 2015 at 11:58 am #

      You didn’t answer my question Ron, so let’s ask it again. It’s really easy – just “Yes” or “No”. Even you can handle it.

      Do you believe that a printer who is gay should be forced to accept and fulfil an order to produce posters with the slogan “Gay Marriage should be Outlawed”?

  13. Father Ron Smith May 21, 2015 at 12:14 pm #

    “Ron, Do you believe that a printer who is gay should be forced to accept and fulfil an order to produce posters with the slogan “Gay Marriage should be Outlawed”? – Peter Ould –

    My answer, Peter, is – If he values his job, or the money he is paid for doing it, YES! Its all a matter of customer obligation – which should not reflect personal biases.

    • etseq May 22, 2015 at 4:03 am #

      It does little good to engage with poor Peter – what most of us take for granted as settled matters in secular society, as well as the very notion of epistemic secular knowledge production in science and law, Peter will contest by long, excursive critiques peppered with citations to various sources and claims of logical flaws or most likely assertions of either secular or homosexual bias against counterclaims grounded in a rival epistemic evangelical worldview. Ultimately, he really isn’t arguing facts or law – its an epistemic clash that only he and a minority of evangelicals view as problematic. For those of us who have reconciled ourselves to modernity, there is no viable epistemic competition!

      • Ian Paul May 22, 2015 at 10:41 am #

        Which would be very convincing…were it not for the fact that a wide variety of people from all points of view agree that this judgement is nonsense.

        Peter is perfectly happy to engage with rational critiques of his position.

        • Peter Ould May 23, 2015 at 8:06 am #

          And perfectly happy not to bother dialoguing with someone who starts out with an insult.

  14. Jamie Wood May 21, 2015 at 2:13 pm #

    Unfortunately, this association (in the case put by the plaintiff) of “reason for refusing” with “characteristic of people requesting” has a long and dishonorable legal history.

    For example, the front page of The Times, 17 years ago on 22 May 1998, features a lady who won her case against London Underground. She was a Tube driver and they refused to adjust her shifts to accommodate her need to care for her son.

    Now of course they should, morally, have been willing to adjust her shifts without litigation. But it was then legal for an employer to ignore childcare commitments. So she went to court, and won, on the grounds that ignoring childcare was effectively discriminating against her as a woman – because women do more childcare than men. A thoroughly lousy reason for a good result.

    So also in this case. A wish to support gay marriage is “somewhat associated” with being gay. Therefore political discrimination is outlawed, because it is “somewhat associated” with a protected characteristic. A thoroughly lousy reason for a bad result.

  15. John Allman May 22, 2015 at 4:11 am #

    I was all set to defend freedom of conscience, until I read the judgment, on Bailii. What I eventually blogged was very different from what I expected to be blogging!

    No platform for gay cakes!

    https://johnallmanuk.wordpress.com/2015/05/21/no-platform-for-gay-cakes/

  16. David Shepherd May 27, 2015 at 8:40 pm #

    On reflection, I consider the judge to have erred in making a critical inference from same-sex marriage to sexual orientation. She stated:

    ‘Same sex marriage is inextricably linked to sexual relations between same sex couples which is a union of persons having a particular sexual orientation.’

    now, this might be true if non-consummation, as grounds for annulment, applied equally to same-sex marriage. However, under British law, consummation doesn’t apply to same-sex couples.

    Marriage (Same Sex Couples) Act 2013:

    Schedule 4: Section 12 of the Matrimonial Causes Act 1973 (grounds on which a marriage is voidable) is amended as follows.

    (2) The existing provision of section 12 becomes subsection (1) of that section.
    .
    (3) After that subsection (1) insert—
    .
    (2) Paragraphs (a) and (b) of subsection (1) do not apply to the marriage of a same sex couple.”.

    The Same Sex Marriage Act does not allow non-consummation to be a ground for annulment. Therefore, contrary to the judge’s assertion, same sex marriage is NOT ‘*inextricably* linked to sexual relations between same sex couples which is a union of persons having a particular sexual orientation.’ (Emphasis mine).

    Ergo, a person can be treated a person differently on account of their support for same-sex marriage without discriminating against sexual orientation.

  17. David T June 22, 2015 at 6:51 am #

    ‘Is support for same sex marriage really indissociable from sexual orientation?’

    Yes, I think so because it is unlikely a straight man will marry a gay man.

    • Ian Paul June 24, 2015 at 10:49 pm #

      But that of course is not the question. It is ‘Would a gay man marry a woman?’, not to mention ‘Would straight people support gay marriage?’

  18. Ian Paul February 2, 2016 at 3:10 pm #

    Fascinating to now see Peter Tatchell completely agreeing with this.

    http://www.theguardian.com/commentisfree/2016/feb/01/gay-cake-row-i-changed-my-mind-ashers-bakery-freedom-of-conscience-religion

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  1. What stops us growing in our faith | The Vicar's Blog - May 21, 2015

    […] yourself as a Christian. Having said which, there are some signs that the situation is changing. The judgement against Asher’s bakery in Northern Ireland, if unchallenged, will make it increasingly harder for believers to stand up […]

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