#Soapbox: Why Ashers was right, but the conscience clause was wrong…

From reader AJ Fence

I am pro gay marriage and pro cake. I think the conscience clause is a horrid little idea that would declare open season on discrimination against LGBT people and even religious people themselves. However, I do believe Ashers bakery should have the right to refuse to bake the cake in question.

The Cake

By requesting the the slogan “support gay marriage”, this was a cake making a political statement, not a wedding cake. I believe that if a trader does not wish to promulgate political slogans that he/she does not agree with then he/she should not have to.

We must ask ourselves how we would react if someone asked us to print a t-shirt or bake a cake with a slogan that we did not agree with.

“Bomb Syria”? “Increase tuition fees”? “Cut working age benefits”? These are all recent legitimate political debates that we would be forced to promote if Ashers could forced to bake the cake. Just because Jim Allister says it doesn’t always mean it’s wrong. Freedom of speech surely requires freedom of silence.

There will be those who argue that gay marriage is an issue so fundamental to equality within society that it is beyond politics. I sympathise with this view, but must recognise that it is a change law that has been debated in legislatures across the world in recent years, which in my view makes it undeniably a political issue.
The Conscience Clause

Refusing to assist in the promotion of a cause you do not agree with is one thing. Refusing goods and services to those whose lifestyle you disagree with is a separate issue. It is unjust and incompatible with democracy to allow such discrimination.

The zealots behind the conscience seem excited by the opportunity to discriminate against homosexuals but appear blind to the possibility that the very same clause could be used against them.

Could a Presbyterian dry cleaner refuse to wash trousers that may be worn while worshiping in a church headed by the Antichrist? Could a Catholic butcher refuse to sell sausages that may be eaten on Good Friday? Could any religious person refuse to serve those not adhering to the teachings of his/her own particular sect? Leaving aside questions about its morality, a conscience clause would be an unworkable mess of claim and counter-claim.

The DUP’s championing of the clause raises questions about its leadership. This was a lost cause that was always going to be subject to a petition of concern and, in a similar case in 2013, the UK Supreme Court had already ruled against conscience-based discrimination.

With a hung parliament the likely outcome of the May general election, the DUP could have extracted many concessions by propping up a minority Tory government. However, its views on this issue are in such stark contrast to public opinion on the island of Great Britain that no party will want to be seen snuggling up to it.

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  • aber1991

    Are you questioning the right of Catholic medical staff to refuse to take part in abortions?

    If Gays have a right to be safe from non-Gays, we non-Gays have a right to be safe from them.

  • James Martin

    This piece, like many others on this subject, does not really actually address the issue that the conscience clause is getting at. There is no doubt that clause 2 of the legislation in the consultation document is too wide. There is absolutely no chance of it proceeding and that is fair enough- indeed I think the sponsor would even agree with that if he was pushed. So there is to my mind no chance of a gay couple being thrown out of cafes, being prevented from getting a bed at a B & B, being refused a mortgage etc. Many have validly pointed out that if clause 2 was to proceed this could have been a consequence and it seems clear that such things are not ever going to happen (and rightly so).

    Folks seem to have utterly forgotten a key point here- this is a consultation. It most certainly is not the final article and there is no way that the sponsor will put forward a Bill including clause 2 and nor does he have to. And I would ask those, including the author here, what they would have preferred. A consultation without the legislation with the legislation introduced to the Assembly itself as is? Or a consultation including it allowing individuals to comment on it? To my mind, the latter is infinitely preferable.

    But the core issue that the consultation drives at- how to deal with the minority in Northern Irish society who in good conscience cannot affirm same-sex practice remains. Smears and insults towards the DUP and Paul Givan don’t make it go away. This is an issue that all western societies, including ours, have to face. Should such individuals be driven to the margins and prevented from living out their beliefs about sexuality? How do the legitimate rights of the LGBT community play out with regard to such people? These are thorny difficult questions that have to be faced.

    The Ashers case is only one example of the kind of problems emerging- if the courts can navigate that successfully I suspect that there will be no need for something like clause 2 of the “conscience clause.” But the other aspect of the proposal, the narrowly focused attempt to protect religious organisations from offering adoption services, is a serious issue that needs to be thought through. Effectively, due to a judicial decision in 2012, religious organisations who sincerely believe that children should only be adopted by married couples will be banned from offering such services. And this is a real live issue with regard to link between the Family Care Society and the Roman Catholic Church. This issue has by and large been wholly ignored in the debate so far (sadly) even though it is the most likely proposal to actually ever reach the Assembly. I would be interested whether the author believes that the Catholic Church should be prevented from offering adoption services so that gay couples can access adoption agencies everywhere or whether a reasonable accommodation allowing the RC Church to continue offer such services can be struck.

  • AJFence

    Good point re. abortion, made me think. However, I think the distinction here is that medical staff object to the services provided, rather than who they are provided too. They wouldn’t provide an abortion to anyone.

    I’m not sure i understand your point about being safe from gays and non-gays.

  • SeaanUiNeill

    “The zealots behind the conscience seem excited by the opportunity to discriminate against homosexuals but appear blind to the possibility that the very same clause could be used against them.”

    As I’ve said several times on other threads, this is a return to those anti-discrimination issues aired by NICRA in 1968. It is already obvious that Petition of Concern safeguards can be stretched to cover for more than equality and human rights. Any minority or potential minority should dread possible future misuses of the conscience clause against them. A genuine Pandora’s Box……….

  • Gingray

    Simply put, the conscience clause is designed to give traders the right to refuse a service should it go against their beliefs. And there is no way that such a clause can be effectively written that it will not be open to misuse in the future – this could be over sexuality, religion, skin colour, language or even what football team a person supports.

    As sympathetic as I am to the Ashers, this whole thing feels like a sting, and as much as I would like to see some sort of right to refuse over controversial political messages, it is next to impossible to see how this couldnt be twisted in the future to allow people the right to refuse Muslims, or Transexuals or a GAA club or ulster scots speakers from being services.

  • AJFence

    Thanks for enlightening me on the legislative process James, I must confess I didn’t fully understand it and have not read the consultation document itself. I just got all riled up by all the headlines and commentary.

    In answer to your question, out of the options you offer, I agree with you and would prefer a consultation and then introduction to the assembly.

    But to this I would prefer no consultation and no legislation, for the reasons described in my post, and because it is a waste of time as it will never succeed, and if it does it will be struck down by the Supreme Court.

    As for how to deal with the minority in Northern Irish society who in good conscience cannot affirm same-sex practice, I think I was pretty clear when I said “It is unjust and incompatible with democracy to allow such discrimination”. I just don’t think faith can be used as a basis for discrimination. I don’t think I’ll be able to convince you otherwise, and vice-versa. Thanks for taking the time to reply.

  • James Martin

    The “conscience clause” refers specifically to the issue of adoption agencies- if you look at the consultation text you will see that. So you are only half right here.

    With that said, you may be right about whether legislation could ever be crafted in this area. It may come down to the courts navigating a way through- the Ashers case will be very interesting in that regard. But there is a clear sense in which individuals in business should be able to refuse to print messages they can’t accept- whether that be “support traditional marriage” or “support gay marriage.”

  • James Martin

    Thanks for this AJFence. A very decent, respectful response! I entirely get why folks are riled up by this- it goes to the core of people’s identity after all.

    Just one point. You have not answered however on what your view is of the Catholic adoption agency issue. I don’t think that the Supreme Court would strike down such a law- the issue in England and Wales was different in that there was no statutory protection for the adoption agencies in question. I suspect you would say that the church are discriminating therefore they can’t continue. But to me, the church is also being discriminated against due to their particular position on this matter- it is not perhaps so simple.


    Thanks for your piece. It made me think about the following question: if
    the bakery, a commercial establishment who present itself to the
    general public as capable to sell a given service, had baked the cake,
    would that mean a political or religious commitment to the slogan?
    Following the example, one thing would be printing the shirt; another
    thing would be to wear it. If offering a commercial service would not imply a political commitment, the consumer may feel discriminated to have a service, which is offered to the general public, refused to her or him.

  • chrisjones2

    Are you questioning the right of Catholic medical staff to refuse to take part in abortions?

    Hasn’t this been decided in law? And the answer is ‘yes’.

    If their conscience dictates they can always resign …and that appolies to Protestants and Catholics

  • eireanne

    surely the simple answer is for a company to employ at least one member of staff who has no objections to icing the cake, printing the t shirt etc (all slogans etc being within the law). So a total NO NO to promoting domestic violence, drug pushing, illegal paramilitary organisations and so forth)
    The upshot is kudos for the company on promoting diversity, non-sectarianism etc

  • chrisjones2
  • Gingray

    James, it appears that you have misread the proposal document, given that the adoption element is only one part of the proposed change to the equality act. There is a proposal to make an exception for businesses based on religious belief (seeks to add a link after 16 in the act).

    Check it out here, page 12 for the detail:

    Cleverly worded no? But it clearly states that the changes mean Act will not be able to stop people refusing service if it goes against their strongly held beliefs.

    Thus if someone feels strongly:

    – that Catholics are not actually Christian, then they could refuse to use their trade to do anything to endorse the views that they are.

    – that black and white persons cannot marry, its against gods wishes, then they wont supply wedding suits to a mixed race marriage
    – that women should stay at home and not be allowed to drive they could refuse to sell a car to a woman.

    People do actually hold these views and claim that their belief in the bible/koran/torah/ is the true and just one.

    Also it only discriminates for those with religious beliefs – so an atheist couldnt refuse to provide a service to a creationist, but a creationist could refuse to provide a service to an atheist.

  • James Martin

    I said you were half right- you are not wrong about the point about businesses. Your initial comment did not refer to the adoption issue, simply stating it only affected traders. That is the only point I was making. Just to add, the examples you are giving here are also in the main not applicable- it is an amendment to the sexual orientation regulations and therefore only applies to issues related to sexual orientation. Therefore comments regarding creationism, women driving, race etc are irrelevant.

  • Pete

    Gay marriage is illegal in Northern Ireland. Using your logic, Ashers did nothing wrong.

  • AJFence

    I don’t know a huge amount about the particulars of this issue James, but your suspicions are correct!

    For me, until some hard evidence can be provided that same-sex couples’ parenting is detrimental to the physical, mental or emotional well-being of a child, then it cannot be right to discriminate.

    I have not looked for any evidence, I would be surprised if enough data was even available to conduct such a study and even more surprised if it was found to be detrimental.

    It does seem a bit of a shame, as I’m sure these agencies are full of hard working and otherwise well-meaning people and that this issue would a affect only a minority of cases. But as I’ve said above, I just don’t think faith can be used as a basis for discrimination. It’s too arbitrary to each individual to enshrine in law.

  • Pete

    There was no discrimination with Ashers. The customer essentially requested a product that Ashers do not supply.

  • DTNorth

    “Safe from them” what?

    What do you think they are going to do to you?

  • Gingray

    Actually James, the beauty of a bill and regulations is that despite the name of the bill, you can just about fire anything in it that you want.

    For example look at clause 3 and clause 4 of the The Equality Act (Sexual Orientation) Regulations (Northern Ireland) 2006. One specifically mentions sexual orientation. The other does not and can be applied to any form of victimisation.


    The wording of the DUP amendment around point 16 does not state that it will only apply in regards sexual orientation, and the supporting text in their consultation lends itself to being applied in any circumstance that goes against someones beliefs.

  • James Martin

    Thanks for this. My understanding is that you are incorrect here but of course you can make this argument if you want to.

  • Gingray

    Thats ok – you can believe I am incorrect 🙂

    “In some legislative systems, such as the British Parliament, riders are prevented by the existence of the long title
    of a bill that describes the full purpose of the bill. Any part of the bill that falls outside the scope of the long title would not be permitted. However, legislators often bypass this limitation by naming a bill vaguely, such as by appending “and for connected purposes” to the name.”

    So the bill in question is the overarching equality Act, and here is the title:

    “An Act to make provision for the establishment of the Commission for Equality and Human Rights; to dissolve the Equal Opportunities Commission, the Commission for Racial Equality and the Disability Rights Commission; to make provision about discrimination on grounds of religion or belief; to enable provision to be made about discrimination on grounds of sexual orientation; to impose duties relating to sex discrimination on persons performing public functions; to amend the Disability Discrimination Act 1995; and for connected purposes.”

    The sexual orientation element is a regulatory power related to the overarching act.

  • Biftergreenthumb

    Minorities have nothing to do with it. Anyone at all could be at the mercy of the conscience clause. A hetrosexual white anglosaxon protestant male could also be discriminated against because of the clause. Its essentailly the legal right to exercise your worst prejudices. Whether you are a member of a majority or minority community is irrelevent.

  • Biftergreenthumb

    Does that mean that each cake shop has to employ a neo-nazi just in case someone wants a swaztika cake?

  • SeaanUiNeill

    Of course, Bgt, you are perfectly correct, and the issue of minority/majority is irrelevant. Any law that enshrines such a concept may be used against anyone, however minorities are more vulnerable as the constraint that the threat of alienating mass opinion may put on an unjust use of such a clause is absent.

  • Croiteir

    Read it again – they lost the battle at the Supreme Court which gave its verdict last December

  • Croiteir

    The Scottish nurses lost their cases and thus the Catholic nurses of Scotland and I presume England and Wales must participate in abortions or lose their job.

  • Pete

    They do not provide cakes with a pro gay marriage slogan. Your post is ludicrously oversimplifying the issue.

    They can choose which types of cake they wish to serve, as long as they don’t discriminate by eg refusing to serve a cake to a gay person that they would serve to a straight person.

  • Pete

    So if I walked into a bakery that sold only chocolate cake, and demanded a Victoria sponge, have I grounds to feel aggrieved when they refuse the order? Should I complain that they are withholding their service of “selling cakes” to me? Certainly not.

    In that scenario, I would accept that the shop are not willing to bake me the cake that I have requested. I would be free to purchase a chocolate cake if I so desired.

    Similarly, in the Ashers case, the shop was not willing to produce the specific case requested, and it had nothing whatsoever to do with the customer’s personal religion or political beliefs.

    Just because a shop sells cakes doesn’t mean they need to sell every possible variety of cake.

    I suspect the legal case will rule against Ashers, actually. But I think their reasoning for doing so will be illogical.

  • chrisjones2

    Yes…of course ….that’s the law. As must the Protestant or Hindu of Muslim nurses. Why just focus on Catholics?

  • chrisjones2

    That’s a false analogy.

    If you walked into a bakery and ordered a diamond ring and they said sorry be don’t sell jewelry (to anyone) that is fine.

    If you ordered a cake and they said sorry ni**er / whitey / mong / chink / poof we dont serve your type that is wrong morally and genreally illegal

  • Pete

    I don’t think it’s a false analogy.

    I didn’t say they necessarily lacked the ingredients. Perhaps it’s a cake shop, with the ingredients to make both a chocolate cake and a Victoria sponge. Except the shop doesn’t want to sell Victoria sponges. So they refuse to make one for anyone who asks, regardless of their sexuality. Perfectly acceptable. They are choosing which types of cake that they use their ingredients to make.

    Similarly, the fact that a cake shop has the ingredients to ice any message onto a cake doesn’t mean that they are obliged to make any cake that a customer requests. Again, they are choosing which types of cake that they use their ingredients to make.

    Ashers is refusing to sell a “Support gay marriage” cake to any customer, regardless of sexuality or political belief. My fictional cake shop is refusing to sell a Victoria sponge to any customer, regardless of sexuality or political belief. They have the ingredients to make a Victoria sponge (as those ingredients are also used in other cakes), but they choose never to make that particular type of cake.

    Your example of refusing to serve someone based on their skin colour/sexuality is obviously illegal, and has absolutely nothing to do with the Ashers case. Ashers did not refuse to serve someone on the basis of their sexuality. They refused to serve someone because they ordered a product which Ashers did not want to produce.

    Furthermore, your example of jewellery, if anything, proves my point. A bakery doesn’t want to sell jewellery? That’s fine. A bakery doesn’t want to sell a particular type of cake? That’s also fine.

    (Some of this post has disappeared. I’ve added it back in, but I’m not sure if it’s displaying correctly.)

  • Pete

    See my reply to chrisjones2.

    You have not refuted any of my points at all.

  • eireanne

    supporting neo nazis is illegal in many EU countries – not sure about NI.
    Could a Hindu or Buddhist request a swastika cake as the swastika was an ancient religious symbol for them ? if not, why not? As far as I know the swastika is not banned.

    Gay marriage may be illegal in NI but the campaign to “support gay marriage” is not.

    Any other objections to an integrated workplace as a means to overcoming some difficulties?

  • Croiteir

    As i was answering anothers question – if you know of a protestant, Hindu or Muslim at court on this issue I will happily discuss it.

  • Pete

    As I said, read my response to chrisjones2. It isn’t a matter of ingredient at all. My position is completely outlined in my response to chrisjones2.

    Sorry, but the point you are making in your most recent response is simply not relevant. I don’t think you understand the issue at hand here.

    “But try this on, 5 minutes after couple 1 were refused the services a male/female walk in looking for a cake for their wedding with a message saying ‘Praise be to Jesus’ in the same icing that would have been used on the cake of the previous couple. Would they be refused? Absolutely not.

    Difference between couple 1 and couple 2? Sexuality. Covered under Equality legislation.”

    No, the difference is the message requested on the cake. Not sexuality. Sexuality would be the difference if the shop provided a “support gay marriage” cake to a straight couple but not to a gay couple. If that was the case, of course it would be illegal due to discrimination based on sexuality. But that isn’t what happened at all. Your example is faulty.

    Your focus on them having the “same icing” is irrelevant. I’m not arguing that this is about what ingredients a shop has or doesn’t have. My point is that a shop is free to choose what it uses its ingredients to make. Perhaps a shop with the ingredients for a chocolate cake chooses only to make square chocolate cakes, even if the customer requests a round one.

  • The Firemen

    I am hoping that your phrase “if Gays have a right to be safe from non-Gays, we non-Gays have a right to be safe from them” is either a typo on your part or you have failed to explain yourself correctly. Would you care you explain EXACTLY what this means and also how it relates to the correct use of the Petition of Concern mechanism on this occasion?

    Please refer to my previous piece on this issue: http://sluggerotoole.com/2015/02/19/the-dirtiest-words-in-politics/

  • Pete

    There was no “ingredients” argument.

    The chocolate cake vs Victoria sponge is entirely relevant. My point is, just because a shop sells “cake” doesn’t mean they must sell every possible type of cake.

    Your most recent example is deliberately clouding the issue. You have 2 different cakes being requested, and 2 different sexualities of couples. You are claiming that the difference in response is due to sexuality, when it is actually due to the cake requested being different. You can’t alter 2 variables, and then claim that the non-relevant one is responsible for the difference in response!

    If a heterosexual couple ask for a “Support gay marriage” cake, it is refused. If a homosexual couple ask for a “Support gay marriage” cake, it is refused. Ashers does not sell that product, therefore it is not available for anyone to buy, regardless of sexuality.

    If the heterosexual couple and homosexual couple ask for the same individualised wedding cake, then they will either both be accepted or both be refused. If Ashers refuses to bake an identical cake for the homosexual couple, then that is illegal. That is not what Ashers did. THAT would be discrimination due to sexuality. But that is not at all equivalent to the example you have used in your post above.

    In your example, we have a heterosexual couple requesting a cake that Ashers are happy to make (regardless of the sexuality of the requesting couple), and the homosexual couple requesting a cake that Ashers are not happy to make (regardless of the sexuality of the requesting couple). If the homosexual couple requested the “Praise be to Jesus” cake, it would be provided. If the heterosexual couple requested the “support gay marriage” cake, it would be refused.

    Despite you thinking my other examples are irrelevant, they actually are directly analogous to this. It is exactly the same as a heterosexual couple requesting a square chocolate cake (which the shop sells), and the homosexual couple requesting a round chocolate cake (which the shop does not sell). The homosexual couple doesn’t get a cake because they are trying to buy one that the shop doesn’t sell, not because of their sexuality.

    In the example you have given, the homosexual couple are not treated less favourably due to their sexuality, but are refused service because they are requested a cake which Ashers do not provide to anyone (“Support gay marriage”), regardless of sexuality.

    The sexuality of the couples is irrelevant. I’m sorry, but I really don’t understand how you can’t see that. I suggest you read it again, and try to understand this. It appears to be going over your head.

  • chrisjones2

    Its not ‘illegal’ its just not recognised by the sate

  • chrisjones2

    Yes but its the why they choose not to make it that is the issue. We don’t want to serve your type isn’t valid

  • chrisjones2

    The caste is irrelevant …its just that some on here see this as solely a catholic issue

  • Pete

    Of course “we don’t want to serve your type” wouldn’t be valid – that would be illegal.

    The relevant point for Ashers is that they chose not to provide a specific cake; they did not refuse to serve a customer based on their sexuality. Refusing to serve a customer based on their sexuality would obviously be illegal.

  • Practically_Family

    I suspect they’re going to learn to suppy it in the very near future.

  • Makhno

    When a baker makes a birthday cake, they don’t have to wish the celebrant well, they might hate the person, or be totally indifferent. Similarly, a Man City supporting baker has no right to refuse to make a Man U cake.

  • Zeno

    ” they did not refuse to serve a customer based on their sexuality. Refusing to serve a customer based on their sexuality would obviously be illegal.”

    I know that, you know that, everyone knows that. But the activists and their supporters keep pushing the propaganda that Ashers don’t serve gay people.
    It spices up the story. But it is a lie.

  • SeaanUiNeill

    Pete, the bakery offers a service to supply decorated cakes. Decorated cakes pure and simple. It does not specify what decorations the cakes should have. If it had a number of “template” cakes and did not offer a customer specified service then your arguement would hold, but where no such situation exists and they offer to work to customer specifications, then the act of refusing service on a personal value judgement regarding the message on the cake is an act of discrimination. This is the way law works.

    What this comes down to is the simple choice between whether we should permit discrimination against any section of the community or not. If this is permitted then no one person is safe from discriminatory actions from any other person citing that they are acting in conscience. Not making a cake for someone seems pretty trivial in itself, but the implications of why the making of the cake was refused are enormous.

  • Biftergreenthumb

    “…a Man City supporting baker has no right to refuse to make a Man U cake.”

    This statement seems like a reductio ad absurdum to me.

    I support gay marriage and oppose the conscience clause. But saying ‘bakers have no right not to make cakes’ seems to me to be absurd.

    Nobody has the right to force a person to bake them a cake. The idea is completely ridiculous.

    If I owned a printers and a right wing organisation came in and asked for leaflets arguing for the privatisation of the health service or the outlawing of trade unions I would refuse to print them. If the government stepped in and forced me to do it I would feel that a great injustice had been done.

    A free person should not be forced to use their labour in the service of a cause which they oppose.

  • Pete

    I don’t see how refusing a particular message is discrimination. As long as the message is refused to every customer equally, nobody is being discriminated against.

    Ashers is not discriminating against any section of the community. A heterosexual couple would also be refused a ‘support gay marriage’ cake.

  • Biftergreenthumb

    “Any other objections to an integrated workplace as a means to overcoming some difficulties?”

    I don’t think anyone here has raised any objections to an integrated work place. You suggested that a business person who has certain political views should hire someone with different political views simply to service customers with those views. This is both impractical and misses the point. If I don’t support a particular cause I still wouldn’t want to pay my staff to help promote that cause. So your solution doesn’t work.

    In a free country people shouldn’t be forced to use their labour or resources (including their staff time) to promote a cause that they oppose.

    Your point about the legality or otherwise of neo-nazi parties or the campaign to support gay marriage is irrelevant. Even if both things are legal, if a business owner doesn’t support their cause it is wrong to force him to work to support it.

  • Catcher in the Rye

    You’re being trolled.

  • Pete

    Exactly. How on earth can a company be forced to bake a specific cake against their will?

    If Ashers loses their legal case, the world will truly have gone mad.

    I also support gay marriage but Ashers has done nothing wrong here.

  • SeaanUiNeill

    Think of it like fixed chess moves or like arithmetic (2+ 2 =4). That’s how law works, on quite precisely defined sets of rules, not on personal evaluations of may should be considered right or wrong. You can build any argument against the simple fact that Ashers offered a decorated cake service without stipulation as to what they would or would not make, but its entirely irrelevant in law. The reason for the refusal is the issue here. You are citing the fact that they would not make a similar cake for a hetrosexual couple, this is an irrelevance! Their reason for chosing to not making the cake is inherently discriminatory in itself, no matter who asked them.

    The really serious issue here is how the conscience clause could be used in other circumstances. Can you not see how the claim of discrimination to protect conscience could be used against Christianity itself in slightly different circumstances, say an atheist government such as existed behind the Iron Curtain until recently? This kind of thing is very open to abuse and the thin protection that the law offers against discrimination is something that protects all of us, not just one section of the community. The erosion of this imperfect attempt at protecting the vulnerable effects everyone.

  • Barneyt

    I have to jump in here. The cake requested is most likely the same cake they sell 10 times a day, however we are talking about the decoration on the cake. The message and adorments…. not the core ingredients.

  • Barneyt

    I’m afraid you initiated the ingredients issue Pete. The point is that the cake they refused to bake is the same cake they normally bake, however its not the core base cake itself.Its the political message on the cake they objected to. So for the sake of argument, Cake 1 is sponge and Cake 2 is sponge. Cake 1 has icing on it, Cake two has icing on it. Cake 1 says, “Up everything nice!” Cake two says, “Support Gay Marriage”….or whatever was in the request. Cake 1 = Cake 2…except for the message on the cake. There!

  • Pete

    I don’t follow your first paragraph. I personally don’t think that just because a shop ices cakes that they should have to ice absolutely any message. Hence my analogy earlier that just because a shop bakes cakes doesn’t mean they must bake a certain type of cake eg Victoria sponge, if the customer requests it.

    About the conscience clause, I oppose it. I’m not religious anyway.

  • Zeno

    Their reason for not making the cake is inherently discriminatory in itself, no matter who asked them.

    Good morning Seaan.
    I would have thought that the law was aimed at protecting individuals rights and making sure they have the same rights as everyone else? You can’t have a law that is going to protect political statements, can you?
    Would a Gay Baker be forced to manufacture a cake with a horrible anti Gay message?

  • Pete

    People misinterpreted my point as being that the shop lacked ingredients, but that’s not what I meant.

    Take the example of a square chocolate cake vs a round chocolate cake. A bakery could refuse to produce the square one, but provide the round one. That’s its own choice.

    Similarly, a bakery could produce some iced messages but not others, as long as no discrimination is occurring.

  • Barneyt

    fair enough. This is an interesting case. They could introduce a policy to refuse to cater for messages of a political nature, but determine what is and what is not political is difficult. You have to wonder, were Ashers targeted knowing they would refuse such a message? Could another shop have been used? Equally, could Ashers have handled this differently. Some of these questions can be met with the answer “Yes” I expect.


    OK, but does a company has the same rights and duties applied to an individual? In the US (I had a memory of the story and just went to check on Google), the Obamacare was demanding coverage of birth control by corporate health plans. Companies were challenging this rule alleging that the demand violated their religious freedom. Can a company have a religion? Seeing from the consumer’s point of view, when picking a bakery to order a cake, this consumer tend to not consider the religion of that business, its owner or employees. The consumer goes there based on the fact that such company offers the given service. If the company does not offer to her or him the same commercial service that it offers to others, she or he may feel discriminated and may decide to challenge it. The issue is complicated. Very interesting as well.

  • SeaanUiNeill

    Zeno, its the way law works. No law can protect everyone from everything. The catch all regulations created to protect us from one particular thing, person to person discrimination, will certainly not stretch to cover its opposite, the right of conscience of someone to discriminate. You need to get away from the idea that the protection against discrimination issue will cover everthing people think they should be permitted to do. If the motive behind the refusal is discriminatory, which in this cake issue it clearly is, then the explaination of this act of discrimination as conscience driven is an irrelevance. The primary motive is still discrimination, as was decided in British law in the Bull case:


    The real issue for me is that this kind of conscience legislation is in the final analysis a subjective judgement call (yes, I know…) and as such could be used against anyone anywhere. The current discrimination laws protect most of us who are not actually involved in discriminatory behaviour from the discriminatory behaviour of others.

  • SeaanUiNeill

    As chris says below, its the motive of refusal that constitutes discrimination. The UN describes says “Discriminatory behaviors take many forms, but they all involve some form of exclusion or rejection.” The motive for rejecting the cake order is clearly admitted to be a refusal based on issues of conscience, ie: the deciding person at Ashers is excluding the persons making the order from the normal process of accepting orders for self-designed cakes. Their motive in the (cited as “conscience”) is the issue, in that they are discriminating against those placing the order because their conscience will not let them accept the order, and this is on their own admission an act of discrimination. Wheither they would have refused anyone else, or even a dog with the order tied to its collar is irrelevent. Their motive is discriminatorty as this is defined in law, even though they may believe themselves to be entirely justified in their discrimination by something they believe to be higher than human law.

    All that arithmatic thing I’m useing is to try and show that the law is not simply working to what you may think to be reasonable or rational, but in conformity with legal definitions that have been argued out when the law was drafted and passed, and have been fixed in careful language in order to define what may be considered discriminatory or not.

  • Makhno

    Bifter, the argument was well reductio’d ( new word? what the hell…) by the time I got here, what with sponge and chocolate cakes etc, and our society operates at the level of the absurd, so no harm done.
    I wouldn’t like to print right wing crap either. However unless they were inciting hatred, the bigot’s access to services is the ‘price we pay’ for other, historically oppressed group’s similar access.
    Re printing, the reality is that polical groups of this nature often seek fellow travellers to do their leaflets etc, but I wouldn’t rule out a few BNP knuckledraggers approaching Repsol or an equivalent, with ensuing fun and games.
    Anyone who sells their labour isn’t free, and in the current societal set up the best that we can do is enshrine some principles in law, which may inconvenience you and I, but protect others where no protection existed before.

  • SeaanUiNeill

    Zeno, you quote: ” they did not refuse to serve a customer based on their sexuality.” On what basis did they then refuse to provide the cake?

  • Pete

    “ie: the deciding person at Ashers is excluding the persons making the order from the normal process of accepting orders for self-designed cakes.”

    But I don’t think Ashers is doing that. Ashers is excluding the specific ORDER, not the person making said order. If the person was to order a cake with a different message, it would be provided. The person refused by Ashers is free to order the same cakes as any non-homosexual customer.

    Similarly, if a heterosexual person asked for the “Support gay marriage” cake, they’d have been refused it.

    If someone is refused a product that the bakery is not willing to sell to anyone, then it isn’t discrimination. It would be discrimination if they were selling it to some people but not others.

  • kensei

    I think establishments should have the right to refuse political or religious slogans in a non discriminating basis. If they won’t supply a pro gay marriage cake, they can’t supply an anti gay marriage cake. Or a Jesus, Buddha or Mohammed cake. Should be relatively easy to show in court if they’ve a history of supplying politc stuff and.award damages or dismiss appropriately.

  • Zeno

    They didn’t agree with the message obviously. If the same customer had wanted a different cake there would have been no problem.

  • eireanne

    “You suggested that a business person who has certain political views should hire someone with different political views simply to service customers with those views. This is both impractical and misses the point.”

    I imagine a businessman/woman wants to sell as much of his/her product as possible and will do everything to appeal to as many buyers in the general public as s/he can. The marketing strategy may well involve employing “someone with different political views” –
    But weren’t we discussing religious views?Why did you bring in the political?

    If a businessman/woman decides to limit his/her market (beyond the price range which may exclude some people) to individuals who agree with his/her religious or political point of view, (which may well be illegal) I really wonder whether s/he wouldn’t be better off in some other job. I wouldn’t give much for his/her chances of making a good living in this day and age And s/he would have absolutely no chance of starting a nationwide franchise.

    however far be it from me to offer advice to businesses that they should try to expand beyond a dwindling pool of customers – the markets will take care of them in the blink of an eye. End of problem

  • kalista63

    Look, the cake was clearly a set up and I can’t see this case being a winner. That said, I find the Asher’s people and their type revolting, an aberration and I wouldn’t give them a penny.

    For me the story is, are the DUP introducing this bill on behalf of a party donor? Is this a part that wastes time and public money on such donors and groups not responsible to society such as the Orange Order?

  • SeaanUiNeill

    Exactly, Zeno, they did not agree with the message, but it is their motive for not agreeing that is the all important issue here. Of course they would have had no problem supplying a product where they either agreed or were indifferent to the message, that’s common sense. But the core issue is an active choose to refuse custom on grounds of “conscience”. They acted as they did in refusing to take the order as an expression of their opinion about something, and this opinion was discriminatory, its effect to pick who they would or would not serve. Everything else being discussed here may be deeply felt on each side of the arguement, but is an irrelevence in law.

  • SeaanUiNeill

    If you read down to where I’m answering Zeno, you’ll find that the actual arguement I’m making is that it is the motive for refusing custom in a particular situation to particular customers that is at issue. It is irrelevent to argue very general principals or other instances such as you are doing against a specific situation in law.

    “If someone is refused a product that the bakery is not willing to sell to anyone, then it isn’t discrimination.” What is defining the situation is their motive for refusal in a particular instance, not how they might have behaved in some hypothetical situation. Any court decision will be decided on motive for refusal as was the case in the precedent case in England. The motive was clearly disaproval of the message, ie: discrimination. Their refusal to make the cake for anyone is still an expression of this disaproval of the message.

    I can of course see what you are trying to say regarding the refusal being to do with a message, but it this is simply a red herring to distract from the core legal issue of a motivated action. If your arguement was even slightly correct then there would be no need for any discussion of a conscience clause crafted to permit such motivation.

  • SeaanUiNeill

    “In a free country people shouldn’t be forced to use their labour or resources (including their staff time) to promote a cause that they oppose.”

    What, Bgt, do you actualy mean by a “free country”? This is an issue of law and no-one is free to flout law.

  • AJFence

    What is the law on this?

    Does the law really consider taking a side on an issue that has been debated in the Assembly to be discriminatory?

    I agree that the law currently discriminates against same-sex couples by not recognising marriage and should be changed, but can we have legal sanction against those who wish to maintain the law as it is? To me, that seems a bit back-to-front.

    It would seem odd if the law pre-judged one side of the debate as discriminatory. By this logic would all the MLAs who voted against gay marriage be prosecuted too (parliamentary privilege aside)?

    I think the two key points of the whole debate are:

    1) Do you consider gay marriage to be a legitimate political issue? (I do)
    2) Do you think traders should be entitled to express political opinions by either commission or omission (I do)

    For the record, once gay marriage is recognised in law, refusing to sell a gay wedding cake whilst selling straight ones should definitely be illegal (and I imagine would be).

  • Biftergreenthumb

    All very reasonable. And when it comes to public services provided by the state and paid for by the tax payer I agree with you. But when it comes to private business I don’t think they should be forced to do business with people don’t want to. The price they pay is lost business. If some homophobic cake shop doesn’t want custom so be it. The rest of us can all boycott them. But forcing them seems wrong to me.

  • Pete

    I don’t see why your last paragraph should be correct. Shops can decide what they do and don’t want to sell.

  • Gaygael

    Can we please stop with this faux narrative that this was a set up!

    That is a very handy map of the distance from where queer space meet to ashers bakery. It was potentially the closest bakery.This story broke on the Daily telegraph, with a pre-prepared video of the owners of ashers being interviewed by the christian institute. I think there much more clearly points to where the manipulation of this story comes from.
    This is the same christian institute that has previously scoured around for cases to try and unpick sexual orientation equality legislation, taking a number of cases all the way to the supreme court. They lose consistently.

  • AJFence

    Pete, agreed that shops can decide what they sell.

    I’m no lawyer, but I imagine that when same-sex unions are included in the legal definition of marriage, then a judge would view a straight wedding cake to be, in legal terms, the exact same product as a gay wedding cake.

    Therefore, if you make one but not the other, the only basis for the decision is discrimination against the sexual orientation of the celebrating couple. I believe this would be illegal under current equality legislation.

  • Andy

    The cake issue is one of legality and consensus in Northern Ireland. By letter of the law gay marriage is illegal and widely held religious views do not promote support for homosexuality.

    Wider society understands that discrimination against homosexuality based on personal or reglious beliefs is wholly wrong. It is an incorrect and outdated belief that the religious community in Northern Ireland are either too scared of or too ignorant to address. The fact that some still consider it a “perversion” shows how behind the times our country is. Unfortunately the current state of the law supports this stance.

    Everyone has a right to believe in anything they choose but society determines whether that belief is correct or incorrect. Neo-nazism is wholly wrong, racism is wholly wrong just as pre-conceived religious views on homosexuality are wholly wrong.

    Northern Ireland needs to wake up and smell the coffee. On issues of equality we are still in the dark ages. The fact that the “conscience” clause is supported by one of our main political parties only serves to demonstrate this.

  • SeaanUiNeill

    AJF, the law is currently a mess, and there are debatable issues as usual. There is a clear precedent in English law, the Bull case, which I have provided a link for in an answer above to Zeno. I’d be very surprised if this interpretation was not followed in any judgement taken here, and any other judgement could be challenged in Europe! Regarding basic Equality legislation in NI, I’d suggest you check out this website:


    rather than my trying Mick’s patience with one of my 1000 word replies! But as I understand the current areas of “tolerance” for sexual orientation discrimination, Ashers would have to be a very small business, such as a B & B, a private club, or an actual Religious organisation to escape the charge of discriminatory behaviour. The personal religious beliefs of someone offering any sort of public service do not in any way release them from the requirements of non-discriminatory behaviour which are mandatory for traders and those offering public services.

    On point one I agree with you entirely, but on point two I do not see how you can protect the right of a trader to act in a discriminatory manner in cases such as this without permitting everyone else to do so also. For general freedom from discrimination to exist in any polity, the personal freedom of those who wish to discriminate must be curtailed. This is why I’m saying elsewhere on Slugger that this issue is the same in its implications as the 1968 NICRA campaign for equality and an end to discriminatory practice.

    The real issue for me is that the conscience clause is an open door for anyone anywhere in the wee six to claim “conscience” for any act against anyone else. I know that many posters here are claiming that traders should not be forced to act against their will in matters such as this, but this tolerance of their freedom to pick and choose to whom they will offer their services is a clear charter to discriminate.

    And the image you present of the MLAs who voted against gay marriage (“logically”) being taken before the European Court of Human Rights fills me with sardonic delight. If only!!!!

  • AJFence

    I cited the Bull case in my original post.

    I think the Ashers case is slightly different as it is the refusal to aid a campaign for a change in the law that it does not agree with, rather than the refusal to serve individuals whose lifestyles it does not agree with (although I accept this could also be part of the reason).

    If there was a campaign to, say, reduce the speed limit from 70mph to 60mph I think Ashers should have the right to refuse to aid that too.

    Perhaps the Equality Commission should take the Executive to the ECHR over the gay marriage issue, just like the UK Govt has been brought over prisoner votes. That would be a much better use of lawyer fees than arguing over the Ashers sideshow. But such a flagrant chowing down on the hand that feeds it could have undesirable consequences for the Commission.

  • kalista63

    I’m on Queer Space’s side and little would give me greater joy than to see the bakers put in to poverty (yes, I really am that bitter about fundamentalist) and if GS were asking for, say, a wedding cake I’d be onboard and they’d have a better chance, as I said.

    I heard the interviews with the GS guys and I don’t buy that it wasn’t a set up, sorry.

  • Makhno

    We would not have anything like the integration of people with disabilities in our society (such as it is) without laws (weak as they are) forcing change and punishing exclusion from among other things, provision of goods and services. Some people can pull bits out of the bible to justify said exclusion too.

    If Ashers really want to be that choosy, let them convert to a Christian cake club. I see that they continue to sell pork sausage rolls, so I don’t buy their bible centred excuse.

  • Gerry Lynch

    Actually, that isn’t true… the only people who can be discriminated against on the basis of the conscience clause are people in a relationship with someone else of the same gender. It’s very narrowly drafted – against queers and on the grounds of religion; and very broadly drafted – in terms of allowing pretty much any sort of discriminator feels like as long as he can cite religion.

  • Gaygael

    It wasn’t to my knowledge. I see little evidence that it was. Can you tell me if there is something in the story beyond a hunch that you have that makes you not buy it.
    I suggested why i thought it was manipulated by the christian institute. They were aware from when Ashers first got the letter informing them of potential action from the ECNI. They had tome to shoot a video with the Manager of Ashers. They then fed the story to a sympathetic journalist. The McArthur family have only spoken through a Christian Institute filter.
    There is significantly more evidence to suggest that this has been manipulated by them.

  • SeaanUiNeill

    I see where you are coming from, AJF. But the legal decision should be based on what is unquestionably clear, the act of refusal and then on the declared motive for this action. Individuals placed the order and a motovated person refused it for reasons related to their sexual orientation. The attempts to link the refusal to politics is very much an afterthought in the debate, as the original refusal was on the grounds of a conflict with a Christian faith that considered homosexuality something that the relevant person at Ashers did not want any form of involvement in, a clear case of discrimination where a personal belief related to sexual orientation is referenced to limit a public service to any member of the general public. As I understand the issue no one compelled Ashers to offer a self designed cake service, it is the open remit of this service, open to tehe ntire general public, that has exposed them to what has occured.

    And certainly the “don’t bite the hand that feeds you” rule should inhibit any broad recourse to Europe by the ECHR, in the usual display of “survivor discression” that Mick is discussing within the media over on his “capturing the conscience of the King” thread. The Ashers case is a good media friendly mix of a core issue that effcets teh freedom of us all with something extremely trivial, even silly (“a cake”). This permits the emphasis to shift from one to teh other at any point where press coverage starts getting to close to anything really important. At least on these threads the amnner in which the conscience clause will effect every single member of the public may be aired.

  • Biftergreenthumb

    The term “free country” is a bit of a cliché I know. But in my old age I find myself becoming increasingly libertarian and think that a free country would be one in which a person is free to do what they like as long as they are not hurting anyone else. Not baking someone a cake does not negatively impact on the well being of that person. It’s never wrong to not bake someone a cake.

    The law is the law and you can’t just flout it. I agree. But I suppose my point isn’t really about the law. It more about right and wrong. I think it is wrong for the state to force an individual to use their labour/resources to service a cause that they oppose. Regardless of what the law is i think this is wrong.

  • Biftergreenthumb

    “the markets will take care of them in the blink of an eye. End of problem”

    Exactly! There is no need for a law to force people to bake nazi, gay or whatever cakes. The fact that they refuse custom is punishment enough.

    Regarding your point on the confusion between religious and political. I was just drawing a parallel between my political convictions and the religious convictions of Ashers. I wouldn’t want to go against my political convictions so I can see why ashers don’t want to go against theirs.

  • Juno Apollo

    Simple as this – if you don’t want to work with/for people who may offend you – don’t get a job working with the general public.

  • Zeno

    Set up and a poor copy of American activists tactics.

  • SeaanUiNeill

    Hi Bittergreenthumb, I think it’s another “wood and trees” issue. Particular freedoms cancel out other freedoms, after all freedom si a reification and does not exist outside of actual situation. As one of the two (pre-John McGuffin) Anarchists in the PD/NICRA in 1968. you can probably guess what I think about the state forcing anyone to do anything, but the freedom of the trader is already compromised by the engagement with the state that using the states mode of exchange (money!) and operating within the state’s laws necessitates. My own solution would be to not engage in trade if you really want to be “free”.

    The real issue here is the conflict of two freedoms that cancel each other out. If the trader is free to refuse to serve anyone on issues of conscience, then each and every one of us will have our hard won right to “equal treatment” (within the state’s definition of equality, not my preference) entirely compromised. With the concept of general equality breached to permit Asher’s freedom to discriminate, the way is open to the restriction of all our freedoms on future encroachments of “conscience”. Just look at how the Petition of Concern has been distorted to work in support of very closed interests! I know just how counter-intuitive this seems, to compel someone to go against their conscience to conform to equality law, but do you think that the right of a trader to operate outside of equality legislation in the wee six will not open the way back to the sort of discrimination which was endemic before 1968? I’m afraid that I just cannot formulate any manner in which this is not a one up/one down see-saw.

  • Guest

    Should a Piscean refuse service to a Capricorn? Yes if he wants. End of story. Everyone is born with inalienable rights which include freedom of expression and freedom of association which cannot be taken away.

  • Peter O’Kelly

    Society determines whether that belief is right or wrong? What if society was being fed false information by a cabal who controlled it? So if they have a vote and it’s 51 for and 49% against, then a year later they have another and the result is reversed due to demographics. You may think certain things are wholly wrong, someone may disagree with you, who’s right, you or him? Maybe neither, maybe both, that is why freedom of speech is necessary.

  • Peter O’Kelly

    Should a Piscean refuse service to a Capricorn? Yes if he wants. End of story. Everyone is born with inalienable rights which include freedom of expression and freedom of association which cannot be taken away. This case shows how absurd the concept of state control is. It doesn’t work like all liberal concepts. If the state can make it a crime to discriminate against someone in business well then it can make it a crime to discriminate against someone socially. If I choose not to marry a gay man, can he take me for discrimination? The state does not have the right to interfere in your life like that. This is not really about gays this is about handing over more and more power to the state so they control every aspect of your life.

  • Gaygael

    Some informed evidence to this effect please? Rather than baseless pouting, or you are adding nothing to the debate. Tell me what makes you think it was a set up? American activism to this effect was to change the law. Not enforce an almost 10 year old that the Christian institute had already tried to unpick. Here is an almost carbon copy of this case. Which lost. Repeatedly. The christain institutes previous attempt to unpick gfs.

    Maybe they found a likely parter in the dup and 100k unionist votes, and twist and more complex case on formerly fertile evangelical soil?


    I have presented facts to indicate my belief that this was not a set up. I also have personal knowledge.
    What do lgbt activists have to gain by winning this case? Couple hundred quid in damages and symbolic Pyrrhic victory? The law is already on our side.
    To lose? The unpicking of gfs legislation. Exactly what the Christian institute aim for.

  • Zeno

    “Some informed evidence to this effect please? Rather than baseless pouting,”

    You are confusing me with someone else. I never pout.
    You haven’t presented any evidence that it wasn’t a set up. Just because Ashers is supposedly the closest supplier means nothing. That may be what sparked the idea to target them.

  • Gaygael

    Ok. I will try again with you. Please provide some evidence that this was a set up by lgbt activists.

    Here is my rationale why it wasn’t.
    1) to my own knowledge it wasn’t. I know people involved. It was genuine purchase accepted on Friday and then cancelled the Monday afterwards.
    2) the geographic proximity of ashers to the venue at which QueerSpace meets. Ashers is a bakery that offers a cake decorating service.
    3) no prior knowledge that ashers was owned by fundamentalists. Here is an interview in 2010 where they didn’t mention it. Until July very few people knew that ashers was owned by fundamentalists. My staff used to buy their lunch in this place. http://www.belfasttelegraph.co.uk/business/opinion/big-interview/a-fabulous-baker-boy-28572333.html
    4) I think this is the most significant part. Winning the case does nothing to advance lgbt rights. It would be a phyricc victory. Losing this case imperils hard own rights which are almost a decade old. This would be extremely poor tactics and strategy by lgbt activists. As I have already stated American activists use similar cases to create law or force a change. Exactly what lgbt activists are doing with regard to marriage here and the pending legal challenge. Not retest law that has already been tested and won. That’s bloody stupid. See bulls and the bnb case linked above. And which organisation was deeply involved in that case?
    5) the story was broken by a sympathetic journalist in a sympathetic paper, with a pre prepared interview video with the ashers owner, shot by the Christian institue. http://www.telegraph.co.uk/news/politics/10952494/Bert-and-Ernie-gay-marriage-cake-leaves-Christian-bakery-facing-court-threat.html
    A set up by lgbt activists would have had this the other way around.
    6) the Christian institue have form of weighing in on these cases to try and unpick legislation related to equality on basis of sexual orientation.

    Can you do the same?

  • Zeno

    1) Because someone told you it wasn’t targeted does not mean it wasn’t………

    2) Means nothing. The proximity probably sparked the idea.

    3) The weren’t secret Christians. They named the shop after a character in the Bible.

    4) The Equality Commission for Northern Ireland took on the case on behalf of the customer, who is a gay rights activist. …………… Wny not tell them you don’t want to proceed?

    5) They probably knew it was going to break and got their story out first.
    6) Give me some examples.

  • Breath

    If you want to play the equality card on the provision of Goods and services why pick on only chritian buisnesses why not go down to eastham high street to the islamic backers and demand the same cake be made that is halal certified, why dont they goto islamic cultral and community centers and demand a gay wedding on their premises as these are not mosques maybe it is because they are scared of a uprising backlash from the muslim comunity when they shout islamophobia, so no we wont touch the muslims, I hope they do.

    Seems that this whole issue is about political agenda’s then gay marrage as this cake was to support queerspace’s pro-political motives and not gay marriage.

  • kalista63

    Certainly most, possibly all, Halal and Kosher (did you forget about that?) will have signs and traditional writing to indicate their religious intent thus one won’t get this piece of pork that’s been all over the media today.

    Religions like the above, Hinduism and even the Mormons have certain dietary rules that mean an Asher’s type situation wouldn’t happen in their stores. The well to do McArthur’s (love the poor wee family nonsense that their friends are pushing) trade under Asher’s as a company and are therefore bound by the relevant laws.