The Ashers Bakery Judgement is a Mess

The Guardian reports that:

A bakery in Northern Ireland owned by evangelical Christians has lost an appeal to overturn a conviction that found it guilty of discrimination for refusing to bake a pro-gay-marriage themed cake.

The court of appeal in Belfast on Monday upheld a previous judgment last year that Ashers Bakery had discriminated against a customer on the grounds of sexual orientation.

The family-owned firm in the original case was also ordered to pay £500 compensation to the local gay rights activist Gareth Lee, whose legal action was backed by the Equality Commission for Northern Ireland.

Lee had tried to buy a cake depicting the Sesame Street characters Bert and Ernie below the motto ‘Support gay marriage’ for an event to mark International Day Against Homophobia in 2014.

In my opinion, this is a very poor judgement by the Court of Appeal.

Like the rest of the UK, Northern Ireland has legislation prohibiting businesses from discriminating against customers on grounds of sexuality, subject of course to certain exceptions. So had this been a cake for a coming out party or a same sex wedding then the bakery would have been obligated to make it or pay the fine. However, this cake carried a message advocating a change in the law and the bakery’s objection on the face of it is to participating in disseminating a political message they disapproved of. I would suggest that this is not by any sensible measure discrimination on the grounds of sexuality.

In their attempt to demonstrate otherwise the Court of Appeal argues that:

The benefit from the message or slogan on the cake could only accrue to gay or bisexual people.  The appellants would not have objected to a cake carrying the message “Support Heterosexual Marriage” or indeed “Support Marriage”.  We accept that it was the use of the word “Gay” in the context of the message which prevented the order from being fulfilled.  The reason that the order was cancelled was that the appellants would not provide a cake with a message supporting a right to marry for those of a particular sexual orientationThis was a case of association with the gay and bisexual community and the protected personal characteristic was the sexual orientation of that community.  Accordingly this was direct discrimination.

But it seems to me that this is not as evident as the Court is making it out to be. Straight people can and do support equal marriage. And it is quite conceivable that one of these straight allies might wish to express their support in cake form. Indeed there seems to have been some debate in the initial trial about whether the Bakery actually knew that the person who placed the order was gay or not.

I, therefore, submit that the relevant comparison for deciding if there has been direct discrimination is not between two orders for cakes, one saying ‘support gay marriage’ and the other ‘support heterosexual marriage’. Rather it would be comparing two orders with the same message, one placed by someone who was themselves gay and one by a straight ally. It seems likely given the stated position of the owners of the bakery that both orders would have been rejected. The identity of the person placing the order was not critical and therefore this was not direct discrimination.

You might still conclude that there was indirect discrimination but, firstly, the Court was never asked to rule that there was, and secondly, a much wider latitude is given to businesses to claim that their indirect discrimination was justified. In this case that justification would have been Ashers Bakery’s right to freedom of speech and not to be discriminated against on the basis of their religion.

The Court addresses the issue of avoiding religious discrimination but in a deeply inadequate manner:

The legislation prohibits the provision of discriminatory services on the ground of sexual orientation.  The appellants are caught by the legislation because they are providing such discriminatory services.  Anyone who applies a religious aspect or a political aspect to the provision of services may be caught by equality legislation, not because that person seeks to distinguish on a basis that is prohibited between those who will receive their service and those who will not. 

 The answer is not to have the legislation changed and thereby remove the equality protection concerned.  The answer is for the supplier of services to cease distinguishing, on prohibited grounds, between those who may or may not receive the service.  Thus the supplier may provide the particular service to all or to none but not to a selection of customers based on prohibited grounds.  In the present case the appellants might elect not to provide a service that involves any religious or political message.  What they may not do is provide a service that only reflects their own political or religious message in relation to sexual orientation.

The upshot of this seems to be that a business that wished to avoid the potential requirement to produce any political or religious message, must preemptively decide to never produce a political or religious message.

That seems to require an unreasonable foresight on the part of small businesses. It also seems liable to restrict freedom of speech by inducing many potential channels for political or religious messages to shun them. And it leaves any business not taking that dramatic step in a vulnerable position. Will a gay baker be found liable for religious discrimination if they refused to make a cake with an anti-gay marriage message? How about if a printer refuses to produce leaflets saying ‘white power’, is that racial discrimination? Both those situations seem farcical and objectionable but is that because there’s a genuine legal difference between them and Ashers case? Or is it just because we find those theoretical plaintiffs less sympathetic?

That we may disagree with the people who own Ashers Bakery does not negate their rights. They have a legally protected rights to their religious beliefs and to the political convictions that follow from them. Those rights are breached by requiring them to participate in spreading a message that run counter to their own views or face a fine. As I’ve already intimated this is objectionable not only for the direct impact it has on Ashers but because it creates a potentially problematic precedent. I hope the Supreme Court overturns it.

Addendum:

In Northern Ireland, political discrimination is also outlawed. That makes the judgement somewhat more defensible.

However, it remains deeply problematic. For starters, direct discrimination on the grounds of sexuality is a course of action open across the UK. Therefore, the case can have implications beyond NI.

Even within Northern Ireland, this case does also seem rather removed from the original intention of the ban namely preventing sectarian discrimination. Given its potential implications for freedom of conscience and the success of the peace process, I wonder if the time hasn’t come to remove political views from the list of characteristics protected by equalities legislation.

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8 thoughts on “The Ashers Bakery Judgement is a Mess

  1. There must be some leeway in the matter. Ashers is a bakery, so might have been able to circumvent any perceived liability by supplying an unadorned cake; which may then have been accepted, or rejected by the customer.
    Also, the mere use of the phrase ” Gay Marriage” is a discriminatory definition of “Marriage” : it’s being a presently undefined form of marriage.

    • I don’t see how baking the cake without the message the customer asked for would solve anything. It would a) have been a breach of contract and b) probably still constituted a denial of service that could have been challenged under equalities legislation.

      • Mark,
        there would have been no contract to supply; until and unless Ashers undertook to deliver the order ( in full, or in part), which might, or might not have been the purpose of the transaction. Was the approach by the person who subsequently brought the case, the need of a cake, or the need for a legal stouch.
        Here in Australia, there has been no Media coverage of the failed appeal, except on the Australian Christian Lobby website.
        On another front, Airbnb is changing it’s terms and conditions, so as to require all Airbnb hosts, and customers, to resign, so as to agree and accept a new proclamation of values.
        Personally, I will not be told what to think. No more Airbnb for me.

    • As part of my legal research project, I did a research project on whether courts treated Christians differently from followers of other faiths in the context of discrimination law. I concluded they didn’t.

      So I’m doubtful that would have made a difference.

      • I was thinking less of the courts than the stage before that: would the equality commission take up a case against a Muslim baker?

        I honestly don’t know the answer. It would be an interesting case.

        (As would the case of a gay baker who refused to bake an ‘oppose gay marriage’ cake for a Christian or a Muslim, but you mentioned that already).

  2. Would the ritual of opening the doors of a business, compel and demand that the proprietor service any customer who came his way? Does the mere opening of a door constitute an agreement to enter a contract? Is it itself, a contract? That is what the decision seems to be indicating.
    I’d be interested in any thoughts on the Airbnb stand, which reinforces this attitude of absolute compliance.

  3. The sign at the Entrance of Auschwitz has the B of Arbeit mounted upside down. For this to happen, the sign may have been erected by the prisoners themselves, as a silent statement of protest. This may be apocryphal . Just thought I’d mention it.

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