“It may seem that writing in icing on a cake is a trivial form of expression…”

As Alan mentioned in his post on the Court of Appeal ruling against Ashers Baking Company yesterday, noted legal commentator Joshua Rozenberg, describing the ruling as “surprisingly straightforward”, outlined the judges reasoning

…if a business does supply a service, it must not discriminate on grounds of sexual orientation — which means it must not refuse to provide a gay person with goods that it would provide to others.

In this case, said the courts, the correct comparison was not with a straight man who wanted a “gay” cake, which Ashers would have refused. It was with a gay or straight person who ordered a cake celebrating traditional marriage — which the company would have supplied.

And, as the appeal judges said, “the fact that a baker provides a cake for a particular team or portrays witches on a Halloween cake does not indicate any support for either.”

But, given the circumstances of the original cake order, I’m not entirely convinced by that argument, or the analogy.  Neither is this Guardian editorial

The law against discrimination says that they may not refuse service to anyone because of their sexual orientation. That’s entirely right. It is further arguable that they should not be able to discriminate against anyone because of their political views. But what is at stake here – as Peter Tatchell has pointed out – is also a principle of free speech. They were being asked to make a statement in favour of gay marriage with which they profoundly disagreed. And here they ought to have had the right to disagree.

It may seem that writing in icing on a cake is a trivial form of expression compared to, say, writing in a national newspaper. But it is still the clear expression of an opinion, and that is something that should not be compelled any more than it should be suppressed. The medium does not here affect the message. Suppose the bakery had been approached to produce a cake iced with the old Paisleyite slogan “Save Ulster from Sodomy”. Most decent people would applaud a refusal to reproduce such bigotry. Yet from the perspective of free speech, the principle is exactly the same. If free speech is not the right to be wrong it means nothing at all. Everyone has the right to their opinion but there is no right to compel other people to amplify or even reproduce it.

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