Ashers verdict: ‘To do otherwise would be to allow a religious belief to dictate what the law is’

1cakeThe County Court in Belfast has ruled that Ashers Baking Company and its directors discriminated against a gay customer, Gareth Lee, by refusing to make a cake with a pro-gay marriage slogan.

The judgment was a resounding vindication of the Equality Commission (response here), which backed Mr Lee’s case. It became the latest in a long list of unsuccessful legal actions against LGBT rights taken or supported by lobby group, the Christian Institute (response here).

The case centred on the refusal of Ashers to fulfill an order, which they had previously accepted from Mr Lee, for a cake to mark Northern Ireland Anti-Homophobia Week, which carried the slogan ‘Support Gay Marriage’.

Judge Isobel Brownlie was able to draw on significant Northern Ireland, UK and international case law in reaching her verdict, which found that Ashers Baking Co discriminated against Mr Lee in breach of the Equality Act (Sexual Orientation) Regulations (NI) 2006 and the Fair Employment and Treatment Order 1998.

The decision was wholly unsurprising to anyone familiar with the relevant legislation and how that has been interpreted by the courts over recent years. Equally, it would be very surprising if any higher court were to come to any markedly different conclusion, should the company seek to and be given leave to appeal the judgment.

Judge Brownlie’s judgment is well worth reading in full (41 pages), for anyone interested in how the law balances the protection of the right to hold and manifest religious beliefs with the right not to suffer discrimination. This balance is not to the liking of some, such as the DUP and various Church groups who have backed their efforts to change the law to allow a so-called ‘conscience clause’, which would permit discrimination against members of the LGBT community by those with deeply held religious beliefs. Amnesty International, among others, has comprehensively rejected (PDF) those proposals in its response to a DUP-run consultation.

For those without the time or inclination to read the whole of the Lee v Ashers judgment, here are some key sections:

…I do not accept the Defendants submissions that what the Plaintiff wanted them to do would require them to promote and support gay marriage which is contrary to their religious beliefs. Much as I acknowledge fully their religious belief is that gay marriage is sinful, they are in a business supplying services to all, however constituted. The law requires them to do just that… (pg 12)

My finding is that the Defendants cancelled the order as they oppose same sex marriage for the reason that they regard it as sinful and contrary to their genuinely held 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.

The Defendants are not a religious organization; they are conducting a business for profit and, notwithstanding their genuine religious beliefs, there are no exceptions under the 2006 Regulations which apply to this case and the Legislature, after appropriate consultation and consideration, has determined what the law should be. (pg 15)

It is wrong that in fulfilling the order the Defendants would be promoting and supporting a change in the law of Northern Ireland so as to enable same sex marriage in that they were doing no more than obeying the law and providing the Plaintiff with a service. (pg 17)

I have found in this case that the 2nd and 3rd Defendants [the McArthurs] have a Christian belief that is genuinely and sincerely held and that they have a right to manifest their religion albeit limited by Article 9 (2) of the Convention.

‘The Convention seeks to balance the rights of the individuals against other public interests, but the object of human rights jurisprudence in democratic systems is not simple majoritarian rule. The rule of law is also required to ensure that democracy does not mean that the tyranny of the majority causes disproportionate interference with the rights of the minorities’ – Blackstone’s Guide to the Human Rights Act 1998 (pg 29)

The law in Northern Ireland prohibits the defendants from acting as they did and, in relation to the requirement to balance competing interests, I find that the extent to which the 2006 Regulations and/or the 1998 Order limit the manifestation of the Defendant’s religious beliefs, those limitations are necessary in a democratic society and are a proportionate means of achieving the legitimate aim which is the protection of the rights and freedoms of the Plaintiff… To do otherwise would be to allow a religious belief to dictate what the law is. That is a matter for the Assembly. (pg 37)

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. (pg38/39)

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  • SeaanUiNeill

    The choice of what we purchase, SM, is a matter of private conscience, in which there are as yet no legal restrictions! My conscience has instructed me to avoid purchasing Ashers products for some months now, and my waist size is showing the benefits of obeying moral conscience.

  • SeaanUiNeill

    Lawyers disagree, and have concocted sophistical arguments that have long been posted on slugger and other sites, however if you carefully read the acts themselves, the law itself does not. I would never question your right to your private opinion, or to the rights of others on the broadsheet sites, which have sadly been flooded with comments from an obviously orchestrated campaign, but I do question the sanity of creating the serious breech in equality legislation which any change in the law would require. In order to extend private conscience issues such as you recommend, the general right to equal treatment would need to be effectively scrapped and we would be institutionalising discriminatory practice against each and every one of us.

    What you, and each and every other person who would extend conscience issues into this legislation are actually demanding is a “lie on your belly with your toes in the air” solution, and the judge covers this frightening eventuality in a key phrase: “To do otherwise would be to allow a religious belief to dictate what the law is”. The separation of private and public sphere is clearly imperfect and bruises the conscience of some, but it does serve to protect each and every one of us from arbitrary discrimination authorised by individual “conscience” effectively dictating to the entire community .

  • SeaanUiNeill

    That, CM, includes telling Ashers what they do not seemingly want to hear.

  • Chingford Man

    I suppose it does. But then freedom is a wonderful thing, which is why the New Bigots of Political Correctness seek to restrict it under the guise of “equality laws”.

  • IRF

    Or ‘revoke’, perhaps?
    (I claim the mantle of Slugger’s pedant-in-chief!)

  • Biftergreenthumb

    “Essentially, BGT, you are simply asking for the freedoms of those you disagree with to be restricted.”

    No. Quite the opposite. Everyone should be free to buy cakes and to publish their political/moral/religious ideas and to publish their political/moral/religious ideas on cakes. But just because you have the right to a cake with a message on it shouldn’t mean that every and any baker has the duty to provide you with it.

    If someone I disagree with (e.g. a UKIP supporter) wants to publish his ideas (e.g. British nationalism) I think he should obviously be allowed. But while he has the right to publish his ideas he shouldn’t have the right to force other people to do it for him even if he is willing to pay them for it. I believe publishers/cake shop owners/t-shirt printers etc should have the right to say we disagree with your ideas and so will not help you publish them. This does not take away the right of the UKIP supporter to publish his idea. He can do it himself or find a publisher who will.

    However, if we say every publisher/cake shop owner/t-shirt printer has to print all ideas asked of them then we are restricting their right to refuse to work for a cause which they oppose.

    I personally believe that homophobic and racist ideas damage the moral health of the country. I therefore believe people should have the right to refuse to help publicize those ideas. This in no way restricts their right to hold or publish their ideas. All it does is respect the publisher’s right to refuse to work for a cause which he does not support.

    Refusing to publish does not restrict anyone’s freedom. Forcing publishers to print ideas they disagree with
    restricts the publisher’s freedom.

  • SeaanUiNeill

    I won’t be my first duel. Épée or foil?
    (This is getting all too “The Golden Bough’, and king for a year for my comfort).

  • SeaanUiNeill

    Your last paragraph is the issue in a nutshell. Refusing to publish legal a ideas and opinions actually does restrict their freedom, and discriminates, in that the person refused is not being treated in san equal manner to the other customers of the printer, whom he has no issue with. The law is that no one in a commercial concern may treat anyone differently to anyone else simply on whim. Even on the subjective issue of personal tolerance, this is not something that is tested by relations with those one agrees with, but in regard to those one seriously disagrees with. I would defend the people at Ashers right to their private opinions in their private lives utterly, but I would resist their right to impose these opinions on others by their discriminatory actions under the harding of “conscience” in any public situation.

    As I’ve said above, they are operating as a public commercial concern, not as a private religious body. They must act towards every customer in an equal manner, which in this situation they did not do. In this situation their choice is between their conscience and their career, “give unto Caeser…”.

  • SeaanUiNeill

    This is sadly abuse, not argument, CM. I’m genuinely sorry you feel obliged to resort to reducing the discussion to such simplified reifications.

  • Chingford Man

    Firstly, it’s not abusive to point out the bigotry of others, for example the vindictiveness of those now trying to wreck Ashers’ business with a Twitter campaign for Ashers’ products to be blacklisted.

    Secondly, there is already a hierarchy of rights, and a pursuit of “equality” as an absolute right above freedom of conscience.

    Fionola Meredith got it right.

    “I’ll tell you what this verdict is not about. It’s not about tolerance, or liberalism, or freedom, or casting out the evils of discrimination.

    “It’s about silencing and punishing those who refuse to sign up to a clearly-flawed ‘equality’ agenda. This is an agenda that cannot distinguish between actual discrimination – which is always wrong, and rightly punishable by law – and the vital exercise of freedom of conscience, the fundamental human right not to be forced to express approval for a particular political position.”

    http://www.belfasttelegraph.co.uk/debateni/blogs/fionola-meredith/ashers-gay-cake-decision-is-a-threat-to-our-freedom-of-conscience-31237523.html

    The nasty pursuit of Ashers through the courts has probably done more to whip up prejudice against gay people than anything the likes of Jim Wells could have said. I hope the activists are proud of themselves.

  • IRF

    Supposing a vegan baker refused to make a cake for a customer that had dairy ingredients in it. Is the baker discriminating against non-vegans? (The customer could be a vegan themselves, and buying the cake for someone else, and the baker wouldn’t necessarily know that at the time of transaction.) Or is there a distinction in trading standards or equality legislation between what is in a cake and what is (printed) on a cake?

  • SeaanUiNeill

    CM, it is the way you comment simplified some very problematic issues that I described as “abuse, not argument”. Political Correctness exists, but cannot be regarded as more than partial explanation of some slight aspects of this issue. And Fionola’s comments, I’d feel, display little more than a basic misunderstanding of law and how it operates.

    As Korhomme says below, “this is law, not justice.” The law is a very imperfect way of making decisions, but to paraphrase Churchill “the others are a lot worse.” Of its nature all law is flawed, and the modification she recommends to correct this flaw is far more likely to unravel the law than to positively reform it. I am concerned to hold on to what we actually have. In a number of areas of life we as a community may today actually expect the law to defend a few equalities, not all certainly, but enough to at least give us some possible purchase on a better future.

    I was active in NICRA in the 1960s, and only too well remember those casual abuses that are today far more difficult to effect only because such laws exist as have constrained Ashers in this judgement. I cannot see this as a “political correctness” issue primarily, although I’d be wrong to say that it has not been simplified into that straightjacket by some. However, as a description of what the Judgement actually says, I’d feel that such characterisation is embarrassingly superficial.

    I see from many of the posts here just how frail a grasp our public actually has on the issue of discrimination when perfectly decent people cannot see what this privileging of the freedom of some to discriminate over others may unleash. The tragedy is that I can all too clearly see the integrity of many of those who argue against the judgement for honest idealistic reasons. Their support for the conscience issue comes from some basic misunderstandings.

    “Freedom” is being bandied about in this debate, certainly in Fionola’s article, as if it is some palpable thing and not the infinitely relative thing it actually becomes in practice. In our everyday life we experience freedom as relative to some restraint, not as some great “Les Misérables” chorus of absolute freedom that can be reached if all the impediments in its path are kicked over, as in “the vital exercise of freedom of conscience”. When we simplify these issues with such an intoxicating rhetoric that actually means very little in any practical sense, things may not work out anywhere near as positively as we would wish. In demanding that the “freedom of conscience” issue trumps the very real anti-discrimination laws that have been so hard won, the opponents of the judgement unconsciously ask for the whole structure of those personal rights we take for granted today to unravel for the benefit of a faction.

  • SeaanUiNeill

    “Paul Éluard, wake up, wake up…….”

    Hey, IRF, have you encountered the word “flâneur”?

  • IRF

    Is that foreign for ‘timewaster’ or something?

  • Biftergreenthumb

    The law is what the law is. We can agree on that. No amount
    of arguing on my part can change the fact that businesses do legally have to serve any customer. I’m on board with that absolutely.

    I think we both accept what the law actually is i.e. businesses
    legally have to accept any lawful custom from any customer.

    What I think we disagree on is whether this should be the law. I don’t think it should be.

    If a gay cake shop owner was asked to bake a cake with the
    phrase “Homosexuality is a sin” or “Gay marriage is wrong” or whatever my intuitions about this is that the cake shop owner should have the right to turn this down.

    Similarly I feel that a black publisher should be allowed to
    turn down a job from a white nationalist political party if they ask him to print up a load of anti immigrant leaflets.

    I feel a feminist publisher should be allowed to refuse to
    publish a book about how woman are physically predetermined to suit household work and childrearing etc.

    You said in your comment above that “Refusing to publish
    legal ideas and opinions actually does restrict their freedom, and discriminates, in that the person refused is not being treated in an equal manner to the other customers of the printer, whom he has no issue with.” I disagree with this. The racist, the homophobe, the misogynist all still have the right to get their ideas published if someone else is willing to publish
    them or if they publish them themselves. I also don’t think that these are cases of treating customers unequally. It is a case of disagreeing with the ideas. If the racist, the homophobe or the misogynist want a different service from the businesses, one that isn’t racist, homophobic or misogynist the business still has to supply it. My view is that businesses shouldn’t be
    allowed to discriminate against customers but should be allowed to express disagreement with ideas by refusing to publish them.

    The examples I have given point my intuitions towards
    thinking that a genuine disagreement over ideas should be enough for a publisher to refuse to publish. As well as this the fact that it is possible to get ideas published in a number of different ways means that the customer is still free to disseminate their ideas and so a particular publisher is able to
    refuse to publish without interfering with the customers freedoms.

  • IRF

    If a customer wanted a banner printed with a picture of the Prophet Mohammed – an inflammatory image perhaps but not strictly illegal – they’d probably be hard pressed to find any publisher willing to produce it for them. So the argument that they can simply take their custom elsewhere probably wouldn’t apply. In which case every publisher in the land would potentially be guilty of discriminating against the customer?

  • Chingford Man

    I think I’m actually cutting through the reasoning to get to the point. I don’t think this ruling has anything to do with actual discrimination against individuals. I also think political correctness is central to the taking of the civil action and the eventual decision. If, say, a bakery on the Falls Road had refused to take make a cake on the basis that the words “Remember 1690” would be produced in icing, I rather doubt the Equality Commission would have got involved on behalf of any complainant.

    The ruling departs from what we have long held to be discrimination by holding that one can now unlawfully discriminate against people by disagreeing with a political opinion in the course of supplying goods or services.

    It states that Ashers discriminated by not promoting a political slogan in favour of something that is still against the law in Northern Ireland and directly in conflict with the beliefs of its owners.

    That sounds truly revolutionary and a warning that privileging “equality” above any other consideration is not conducive to a genuinely free society.

  • SeaanUiNeill

    BGT, I have every respect for what you write, and would perhaps think along the same line myself if I had not been compelled to seriously look at equality legislation some time before Ashers.

    Elsewhere on the thread I’ve tried to describe how I believe that this attempt to balance out and improve the imperfections of the laws through including some protection for conscience would entirely unravel what protection we have at present. Private conscience imposed on the public arena in the manner you and others recommend is, I feel, a recipe for a disaster in which we may loose what slight safeguards we currently have.

    Much of what you describe would already be fully protected in law. And the issue is not really so much the printing of something but how a human being is treated by others in public role. The old “Product not person” argument that keeps turning up is really a red herring, very much angels dancing on pins stuff. But like you I can see how unjust it is to expect people to do something they disagree with. But there is always the nuclear option of career change to something this issue will not arise in. I have left my own earlier career when it began to become obvious that the only way I could stay in a management role was to engage in the financial abuse of those whom I would build creative teams round. Others were less scrupulous and I was the only looser, but I did not feel that the delicate and very imperfect legal structure of corporate law should have been changed, no matter how strongly I might disagree with it, simply to accommodate my personal morality in this instance, that was my private concern. I created my own studio and earned a lot less money, but kept my conscience clear. I feel it is for me and for others to craft our lives around our personal morality, not for everything to change to inject that private morality into a very diverse and complex public sphere that may become seriously imbalanced in accommodating me

  • SeaanUiNeill

    Respectfully, CM, I think we will simply have to disagree on this matter, I will respect your views, and continue myself to believe and affirm what I feel to be true.

    This is what equality legislation has always been about, its nothing revolutionary. In the public sphere, everyone across the entire community may expect equal treatment when requesting services, in the private sphere they may do and think what they will. Equality is not being privileged above every other consideration, simply above the right of someone providing a service to treat members of the general public differently on grounds of their own personal opinions and beliefs no matter how sincerely held. Its very simple, and when the hype and acrimony is removed, very just for all of us who would not care to be discriminated against by others.

  • SeaanUiNeill

    Yeah, IRF, it’s how I describe myself usually, “planter and Gael” mongrel that I am……no matter where I go here someone is going to think me a foreigner. I was in a Cork taxi once, “Hey mister”, the cabbie sang “are you French?” He had not encountered an Anglo-Irish accent before.

  • IRF

    I’m a Yorkshireman living in Liverpool with an Irish wife – not sure if there’s a term for that…

  • Biftergreenthumb

    They have the right to make their own banner.

    We all have the right to own a 1/20 scale replica of the tower of london made out of toe nail clippings. Just because you cant find anyone who will make you one doesn’t infringe upon your freedom/right to own one.

    If no one want to make a banner with a picture of mohammed on it then tough luck to the guy that wants one.

    Just because you want something and are allowed to own it doesn’t mean someone has a duty to sell you it.

  • Biftergreenthumb

    Well it seems we’ve reached a point where we understand each others positions but can’t really get any further in changing each others minds. In my experience of arguing/debating with folk that’s as sucessful as ya can hope for.

    Keep up the good work!

  • SeaanUiNeill

    Thank you, Bittergreenthumb, for taking the time and trouble to describe what you actually think and why you think it. Neither of us is going to be entirely right I’d feel, and I’d imagine that face to face we’d find many more areas of agreement than disagreement even here. I was one of the “two anarchists” mention as contributing to the PD back in 1968 and have always had a healthy disrespect for the state and its laws. I have some hope that equality legislation will be a good thing long term, I feel it certainly has been in this case, but I’m probably a lot more sympathetic to your general arguments than my posts show. Its a crude messy world.

    Again, thanks for a fine and honest discussion in a situation were all too often things slide into pure abuse as the “red mist” Mick talks of comes down.

  • IRF

    That’s what I would have thought, but some of the comments above appear to suggest that would be discrimination:
    “Refusing to publish legal ideas and opinions actually does restrict their freedom, and discriminates, in that the person refused is not being treated in an equal manner to the other customers of the printer, whom he has no issue with.”
    So going by that, if a customer asks for a banner with an image of Jesus on it and his order is fulfilled, but the next customer asks for one with Mohammed on it and gets refused, that’s discrimination?

  • SeaanUiNeill

    As Jack Benny once said when asked “Your money or your life” and made no immediate reply, “I’m thinking, I’m thinking…….”

  • IRF

    I’ve just posted something else for you to think about a few comments down from here… It can be summarised as: Profiting (or not) from Prophets (it’s a hot topic…)

  • It’s a standard expectation that a company (irrespective of whatever the private beliefs of the owners may be) can put a limit on what it does and doesn’t supply. What it can’t put a limit on is to whom it can supply what it does actually generally offer. That would be unlawful discrimination, as I understand it.

    If you’re correct in what you say, the Muslim printer would be compelled to adhere to a request to print a pamphlet featuring of the Prophet. That simply cannot be correct. Businesses are not obliged to provide services they do not want to (so long as they’re not discriminating unlawfully).

  • Biftergreenthumb

    If a straight man asked for a cake with a pro gay marriage message on it and Asher’s refused does that count as discrimination on grounds of sexual orientation? How could it given he is straight? But he is being treated exactly the same way as the queerspace guy was.

    But if the court doesn’t count this as discrimination on grounds of sexual orientation but it does count the queerspace case then does that mean that it is in fact the law that is discriminating between gay and straight people rather than Ashers?

  • SeaanUiNeill

    IRF, “Render unto me the things that are Caesers……..”

    As a one time animator I’ve been very reluctant to even mention the name of the Prophet in any of my postings these last months. When the Charlie Hebdo massacre took place my wife whispered, looking at the photographs, “some of them look and dress just like you”. I have enough people out for my rather thin blood already here.

  • IRF

    Okey dokey. I’ll lighten the mood and invite you instead to comment on my earlier suggestion of a ‘MEAT IS MURDER’ meatloaf (my silliest suggestion yet!)

  • IRF

    I think if you look back through the archives I made this point last year – it was the gay cake that was discriminated against, not the gay customer. Do foodstuffs have rights? (Apart from dips under the Humous Rights Act, of course.)

  • SeaanUiNeill

    Indeed, it would be discrimination, in that if the printer is a commercial business, both banners are requested as trade items, then bringing personal preferences that favour one customer over another into the public sphere is discriminatory.

    I know the common sense issues, certainly, but this is law, not “common sense”, its intended not to perfectly fit each and every eventuality like some kind of “moral lycra”, but, in its own rather clunky manner, to protect every member of society as equally as it may manage from capricious and abusive discrimination, such as was rife here in the 1960s.

    I wish someone could tell me how to ensure that service providers are going to treat each and every customer equally, and yet have the right to discriminate in how they treat them? That’s a, in the words of the terminally drunk radio fitness coach, “lie on your belly with your toes in the air”, irreconcilability. One cancels out the other. Either we have some rather clumsy laws that try and ensure that we all get equal treatment (yes, I know, people get round it) or we honestly just let anyone do what they like short of violence.

  • SeaanUiNeill

    It kind of does, BGT, if they have a service that advertises itself as being willing to accept your PDFX from Adobe InDesign and print whats on it to your specifications. I’ve worked with printers for decades and they usually provide the service of printing what you bring to them, something similar to what Ashers so disastrously offered the public. The toe clipping sculpture is a bit less common, but if you are serious I know a few model builders from my years in film who would jump at the project if you can afford around £60,000 and provide the nail clippings.

  • I agree; from having read through the relevant passages ([39] onward) in the judgment, I feel the assumption that the McArthurs were aware (or even cared that) Mr. Lee was gay is a suspect jump to make. Why is it relevant that he might have been known to associate with gay people/groups? Straight people can associate with gay people/groups too.

    Even though Ashers could have supplied a cake without the message to Mr. Lee and would have refused the same order from a heterosexual customer, the judge did not feel this was an appropriate comparator as it “oversimplified” the enquiry. In what way does it oversimplify? My impression is that the judge is actually needlessly overcomplicating it. So complicated it is, I, likewise, have difficulty actually making sense of paragraph [42]. Could someone who is able to comprehend it fully possibly simplify and break it down? I keep reading it over and over again to the point where I now feel like a concussed horse ogling at a jumble of letters!

    The judge stated she would apply reasoning from previous cases “if a comparator is required”; why was an external comparator required exactly in order to determine what had occurred internally, for want of a better description? Could the case not simply have been judged on its own merits? She also stated she regarded sexual orientation to be indissociable from the criterion “support for same-sex marriage”; she failed to explain why she regarded it to be so. Plenty of straight people support same-sex marriage and even some gay people oppose it, so you obviously and evidently *can* dissociate the two, no?

    Isn’t there an advantage conferred to supporting heterosexual marriage only insofar as that might have been a type of cake that the bakery actually offered? Isn’t it like saying that chocolate-lovers would be conferred an advantage by a bakery exclusively supplying chocolate cakes. That advantage conferred is simply down to the product or service on offer and it wouldn’t be correct to say that because chocolate-haters might be “disadvantaged” that they have been discriminated against, would it? Businesses are not under obligation to ensure that everyone’s wishes are catered for, are they? They’re simply obliged to supply or serve without discriminating between who they serve. A chocolate cake bakery is not obliged to supply ingredients that would “advantage” chocolate-haters. Am I missing a crucial point in raising such an analogy?

    Say, gay or equality activists decided to now maliciously target Ashers and overload them with thousands upon thousands of orders for cakes featuring messages explicitly supporting gay marriage, would Ashers be legally obliged to accept and fulfill all orders despite possibly not having the practical means to do so?

  • Are you saying then (by use of the above analogy) that Ashers might have been free to reject the order had they expressly stated in some set of terms and conditions or whatever that there were some types of images that they wouldn’t reproduce?

    But that can’t be right, as equality law will always trump any terms and conditions a business might have.

    Is the implication that they would have to reproduce any sort of image imaginable upon request simply because they might have advertised that they’ll reproduce your images on a cake? That might be misleading advertising, but it doesn’t initiate a contract with a customer. Ashers surely remain free to decline business, no?

  • But they didn’t have the ability to make the requested cake insofar as it wasn’t something that their private conscience permitted them to do.

  • Can you link me to some opinions expressed by professionals, Pete? Thanks.

    I have great difficulty understanding the supposed logic of the judge despite having read the judgment. I’m having even greater difficulty trying to find a simplified explanation of it.

  • David T

    No, Pete, she is saying it is highly unlikely a straight man is going to marry a gay man.

  • David T

    No, Pete, you’re getting all mixed up.

    1. Ashers produce novelty cakes to order with lawful graphics.

    2. Mr Lee ordered a novelty cake with a lawful graphic.

    3. The judge dismissed all Ashers’ arguments to justify not supplying the cake.

  • Seaan; you seem to understand the judgment. I, however, am struggling with getting to grips with it and have posted some questions above here: http://sluggerotoole.com/2015/05/19/ashers-verdict-to-do-otherwise-would-be-to-allow-a-religious-belief-to-dictate-what-the-law-is/#comment-2039638316 and http://sluggerotoole.com/2015/05/19/ashers-verdict-to-do-otherwise-would-be-to-allow-a-religious-belief-to-dictate-what-the-law-is/#comment-2039827573

    Is there any chance you could you try and answer some of them if you get some time and shed some light upon this for me. Many thanks and much appreciated!

  • Ben; you seem to possess an understanding of the judgment that I, unfortunately, lack, despite having had a read. I have posted some questions here: http://sluggerotoole.com/2015/05/19/ashers-verdict-to-do-otherwise-would-be-to-allow-a-religious-belief-to-dictate-what-the-law-is/#comment-2039638316 and http://sluggerotoole.com/2015/05/19/ashers-verdict-to-do-otherwise-would-be-to-allow-a-religious-belief-to-dictate-what-the-law-is/#comment-2039827573

    Is there any chance you could you try and answer some of them if you get some time so as to shed some light upon this for me? Many thanks and much appreciated.

  • According to the Belfast Telegraph:

    “The bakery will limit the special cake orders to that of birthdays and baby-related products.

    In a statement issued by the Christian Institute it said that Ashers Baking Company has decided to limit the scope of its Build A Cake department while the owners review this aspect of their business and take further advice from lawyers.”

    Further info: http://www.belfasttelegraph.co.uk/news/northern-ireland/ashers-bakery-to-limit-special-order-cake-range-temporarily-while-it-considers-policy-after-gay-cake-case-31245026.html

    In light of the judgment in the case, would Ashers still not be required to serve a cake displaying a “support same-sex marriage” slogan if, say, someone went in and ordered it tomorrow, irrespective of whether or not they’re reviewing an aspect of their business? If not, why not? If, as service providers, they were obliged to supply the cake at one time, why wouldn’t the same law still apply now? Terms and conditions don’t trump equality legislation, nor do advertised terms constitute contractual obligations.

  • IRF

    Is the distinction down to the fact that they previously advertised the service as “Design your own cake message and we’ll make it”, whereas now it’s just offering “We make birthday and baby cakes”? Compounded by the fact that they took the order and then changed their minds, rather than just refusing it in the first place.
    The more I think about the Ashers case, the more it seems to me to be a case of infringing Trading Standards legislation, rather than purely a breach of discrimination laws.

  • I don’t see why that would be because simply advertising something does not initiate a contract or create a legal obligation to supply. If, say, Argos are advertising a certain vacuum cleaner or whatever in their catalogue but are out of them upon a certain potential customer requesting one, there’s no obligation upon them to go back to the manufacturer, have one made and provide it to a requesting customer. They just say that they’re sorry because it’s not something they’re able to supply and that’s fine.

    Having first taken the order before declining it and then returning the payment is of no material consequence either as, having refunded Mr. Lee, a contract no longer existed.

  • Ian James Parsley

    I emphasise I am not legally qualified, though my wife is.

    My reading of the judgment is that they would not now be bound to bake or subcontract the baking of the cake because they are not offering cakes of the customer’s own design, but rather a specific set. They could quite legitimately say “We don’t bake cakes for that type of celebration, as is clear from our literature”.

    There are a few alternative scenarios about which the judgment was not clear.

    Firstly, if they had rejected the order immediately they would have had a stronger defence. The judgment makes frequent reference to discussions which went on between the accepting of the order and the deciding not to bake it.

    Secondly, if they had been open about their Christian views, either in memorandum or literature, would they have been on stronger or weaker ground? Part of the judgment indicates that discrimination can be unlawful based on your own views, not just your perception of others’; on the other hand, it also makes significant reference to the lack of clarity/publicity concerning the owners’ Christian views, as if such clarification may have constituted a defence.

    Fundamentally, it’s worth noting the judgment is not about whether they should have baked the cake, but about whether they should have treated the customer differently. So the law refers to equal treatment of customers. Starting from there, I find it easier to get some grasp of it.

  • Ian James Parsley

    To go back to my previous point (and I’m not here to defend the Judge, by the way – I am doubtful about some elements too and am still working through my own thoughts), the issue is not what was to be baked or not baked, but how the customer was treated.

    The logic, for which there is precedent in law, is that the cake was for a particular celebration being run by a gay rights group which, it could reasonably be expected, consisted largely of gay members (in other words this goes beyond a single customer). To deny that group a cake referring to a campaign with which it is involved is to treat them differently from others on the basis of sexual orientation. On those grounds, it is considered that the customer acting on their behalf was discriminated against on the basis that either he or his associates in this case could reasonably be expected to be gay.

    Don’t forget that if an Evangelical Christian were to walk into a liberal atheist’s bakery upon seeing an offer of “cake of any design” and ask for a cake promoting “Biblical Marriage Between a Man and a Woman”, the logic of the judgment is that the bakery would have to comply or be liable for compensation on the grounds of discrimination for religious belief. By the way, Ashers would have baked such a cake, which demonstrates differential treatment based on perceived political opinion, religious belief and sexual orientation – which is unlawful.

    If they hadn’t had the ingredients, they could not have made the cake for anyone. That would, therefore, not be differential treatment.

    An overtly Muslim printer would not have to print cartoons of the Prophet Mohammad, not least because they may incite terrorism (and Equality Law makes a specific except in there). A slightly less over Muslim printer would enter shaky ground if offering specifically to “print any cartoon” and then refused to print an illustration proclaiming Jesus the Son of God.

    It is worth noting too that the judgment was clear that the bakery did not have to bake the cake, merely treat the customer equally. Implicitly, it could have found a non-Christian employee to do it; it could have subcontracted; it could even have been upfront immediately upon receipt of the order and sought another way of achieving the outcome. The only thing it absolutely must do is treat the customer equally.

  • Ian James Parsley

    It is discriminating against someone, though. That’s the whole point.

  • Ian James Parsley

    It’s absolutely not equal treatment, as demonstrated in the judgment.

    By offering services skewed against a particular group (by offering, say, “Support Traditional Marriage” but not “Support Gay Marriage”), they are discriminating against that group.

  • Ian James Parsley

    We need to move away from this spurious “Muslim printer”, not least because that would constitute an incitement to hatred (which it is lawful to refuse).

    The issue is that you may not put a limit on what you do or do not supply if you do this in a way which discriminates against a particular group.

    If you would bake a “Support Traditional Christian Marriage” cake, you have to bake a “Support Gay Marriage” cake too – otherwise you are skewing your service in such a way as inevitably to marginalise a particular group.

    Note again the precise same would apply in reverse.

  • Ian James Parsley

    It wouldn’t be wrong if they were offering to print anything.

    There is of course a clash between Free Speech and discrimination, but no one is entitled to discriminate on grounds of religious belief in any direction.

  • Ian James Parsley

    Yes. Ashers could, of course, have been more limited in the services it offers (as if now has).

  • Ian James Parsley

    A feminist publisher could refuse to publish such a book, just as Asher’s could refuse to bake a cake, as long as she was clear from the outset that she was feminist. “Publisher of Feminist and Other Progressive Literature” would cover it, for example.

  • Ian James Parsley

    Not quite. Ashers could not discriminate. They cannot simply say “We’ll bake anything except gay stuff” or even “We’ll bake anything except socially liberal stuff”. They may not skew their services so as to discriminate.

    They can of course decline business so long as it is not done in a way which will likely see a particular group (as per Section 75 Schedule 9 of the Northern Ireland Act 1998) declined more often than others.

    They can either limit the range of options they offer in a fair way so as not to discriminate (as they now have), or they could declare themselves a not-for-profit Christian social enterprise (though that would, of course, change quite a few other things).

  • Ian James Parsley

    The judgment is absolutely clear that private conscience has nothing to do with it. Nor can it, otherwise it could be used to justify any discrimination.

  • Ian James Parsley

    The judgment does not assume Mr Lee was gay.

    It assumes that the type of cake he asked for would more commonly be asked for by people of a particular sexual orientation. Failure to provide it, therefore, is to discriminate against that group.

  • Ian James Parsley

    To be clear, I am instinctively alarmed by the section Pete refers to above, which to me logically all but equates opposing same-sex marriage automatically with homophobia. I am a vehement supporter of same-sex marriage, but I can’t accept that equation.

  • Ian James Parsley

    Good summary.

  • Ian James Parsley

    Your points throughout this thread have been superb.

    Write a book!

  • Ian James Parsley

    Nails it? That’s unadulterated garbage. But Breen has recent form in not being too keen on the Rule of Law.

  • Chingford Man

    Well that’s only your opinion, Ian. Anyhow, perhaps you’ll change it as quickly as you change parties.

  • SeaanUiNeill

    Thank you Ian, for your kind comments. In the past I’ve had to examine media contracts working closely with law firms on this, and using some common sense and this hands on experience, I’ve found that I seem to be able to make sense of what the legislation is actually saying. To my mind the verdict was quite watertight, a very thoughtful and carefully prepared document, following what I’d felt the law genuinely intended to a tee. Of course law is always going to be imperfect, and I’m all too aware why others are still arguing against this with passion, but the dry old law is all we have between our hard won freedoms and simple brute force disguising itself under moral indignation.

    It may seem odd for an old anarchist like myself to be arguing the sovereignty of law, but fifty years of (amateur) political and (professional) business involvement have made me something of a pragmatist, and anything that protects that precious space where human lives may flourish is valuable. I agree with Mick, in his wish that Stormont was pulling its weight on these matters rather than leaving hard decisions to the courts, and sincerely I wish that more decent people such as yourself, other honest Alliance politicians such as Naomi and the Greens Steven Agnew were the rule up on the hill, and that serious political issues such as this were being discussed by a committed and objective legislature, acting as Danny Kinahan suggested on the recently posted video clip, with robust debate but with personal courtesy. I believe this will come with time and social maturity, but it can never come soon enough.

    Oh, I do write books, non-fiction, but nothing overtly political to date!

  • SeaanUiNeill

    Daniel, I’m travelling at the moment, with an ancient macbook that can’t download the text, as it blocks Flash for security reasons. I’ll be at my desktop with the downloaded Judgement on Sunday, and will check them out and post then. Sorry for the delay. I find the judgement pretty tight but agree with many of those posting against it that the rte are still issues the law can never answer every eventuality. There are two things going on in all the postings, abstract debate about the general issues and a discussion of the particular case of Ashers. The Judgement will only really answer the last satisfactorily.

  • Roy Fisher

    If Ashers had run out of eggs they couldn’t bake cakes for anyone like Argos couldn’t sell the vacuum cleaner. Before Ashers had placed restrictions it was prepared to bake cakes of the customers design, no stipulation about political opinion. They disagreed with a customer’s political opinion and the judge believed the company would have baked a pro marriage cake, but not a pro gay marriage cake.

  • Does that mean Ashers put themselves in a situation whereby they could not refuse to print any design request (so long as the imagery was within the law)?

    Does it also mean that had they specified certain political opinions that they would not be open to printing on cakes, they’d have had a defence? Wouldn’t equality legislation still trump such terms and render them meaningless?

  • But the law protects only the plaintiff in the case, no? The case was adjudged in favour of Mr. Lee; not the broader LGBT community, who, as far as this specific case was concerned, were irrelevant, as they weren’t party to it. The legislation protects individuals on the basis of their orientation (or protected characteristics); it does not set out to specifically protect groups of people. Or am I mistaken?

  • Would cartoons mocking the Prophet definitely constitute incitement to hatred? Can we be sure of that? Ok, let’s say the design requested of a Muslim printer, with benign intentions, features a simple *depiction* of the Prophet in a positive light (which is also haram, as far as I understand)… Would the Muslim printer still be obliged to accept and supply the order? Say, if it was requested by a member of a sect within Islam that favoured “idolatrising” the Prophet.

    Why wouldn’t the invoking of a comparator be appropriate here: the Muslim printer would be happy to print images portraying, say, Jesus Christ (either positively or negatively) for Christians or whoever, but he would not be willing to print images of the Prophet for those of the political belief that the Prophet is deserving of mockery or even idolatry. In the same strain of logic as expressed in the Ashers judgment, wouldn’t he be unlawfully discriminating against the latter group?

  • I see. So they can legitimately offer a specific lawfully-discriminating set (in terms of *what* type they supply), but just so long as they’re not unlawfully discriminating against against the particular characteristic of an individual or group (at least in the eyes of the judge)?

  • Some good points here. I had responded to some of your other posts before reading this, so it may nullify some of what I said. Will have more of a think and try digest it all properly when I have a bit more time.

  • If Ashers had advertised that they produced only Christian-themed cakes for all rather than design-your-own, would that have given them leeway?

  • SeaanUiNeill

    Brian, You are making a very broad statement and I’m rather confused that the statement of belief you recommend as an answer should be limited to only conservative values. I have no wish to be provocative for its own sake, but where should such statements of belief begin and end in this matter? By it’s very nature conscience that engenders any such belief is a subjective thing. Even appealing to the broad tenets of conservative Christian belief does not readily bring up solid “across the board” agreement on what these may be.

    My own concern is that it is in trivia such as this cake issue that the strength of legislation is truly tested. Anyone can see blatant and aggressive instances of abusive discrimination, such as the Dreyfus case, but the right of each and every citizen to expect equal treatment in everyday matters is far less obvious, as all too many comparators used here show.

    If we are going to resist discriminatory behaviour in our community then something that will catch such behaviour easily is needed in law. Endless let out clauses for those whose sincere private beliefs conflict with what they encounter trading in the public sphere will be ruthlessly played by those determined to find expression for hatred. The media has drawn sympathy to the defendants in the Ashers case by visually presenting them in a manner that elicits sympathy. They are evidently decent young people attempting to make a living, standing on an issue of what they believe to be conscience. The Judge quite rightly, I feel, dismissed this as an irrelevant defence, finding that the legislation should was to affirm the right of anyone, in no matter how trivial the instance, to be able to expect to be treated as every other citizen is treated should not be lightly dismissed. This is especially important for those of us who first came out in 1968 to prick the conscience of an administration that permitted casual discrimination against a major portion of the community. The condition of our province at that time is all too easily forgotten and the very real protections we now haves simply taken for granted. It would be foolish to not admit that the law is very imperfect, but where it works as a shield against even low level discriminatory behaviour the suggestion that anyone should be licensed to discriminate in any manner against any portion of our community in the public sphere seems to be a very dangerous suggestion.

  • SeaanUiNeill

    Daniel, back at my MacPro this morning, I can now check this out. I’ll post directly under your postings, and check if Ben, whom you have also asked, has answered any of the points you raise as I would first.

  • Roy Fisher

    From my understanding, yes – given Ashers’ unwillingness to make cakes which go against their beliefs and that there were no stated limitations to the graphics a customer could submit in the company leaflet (according to judge & accepted by Ashers), they hadn’t protected themselves at all it seems. It must be lawful of course, but it would seem there was no limitation about rude designs even.

    They couldn’t have specified certain political opinions not to support. It’s all or nothing (again to my understanding). If they made a “Vote for EU exit” cake for an event they couldn’t refuse one for a “Stay in Europe” event, & in turn they couldn’t discriminate against any political opinion, like “Support Gay Marriage”. Unless they are refusing for legitimate reasons which are not on the basis of the political opinion – and that may be tested in court.

    If a company prints ‘right to life’ literature it can’t discriminate against any customers with any other political opinion, whether that’s ‘right to die/euthanasia’ or ‘extend the abortion act’ material.

  • SeaanUiNeill

    The first point, about the passages from [39] onwards, is elucidated in the precedents on pages 13/4. The Judge is stating that defendant [2] was

    The Nargarajan case precedent on page 14 clearly states that ignorance of the motive for an action is no defence. You question the Judge’s drawing of this inference, but the discussions of the defendants after taking the order as given in evidence, showing an awareness that legal action might follow on their refusal, point to their awareness that what they were intending to do in refusing the order could be illegal. This is the “what caused the treatment’ question mentioned at the top of page 14. It hardly supports the simple “political message” defence that they attempted, and suggests that they knew they might be rejecting it on discriminatory grounds, something that entirely contradicts this defence.

    Paragraph 42 seems very clear to me. The judge is simply stating that this ‘what caused the treatment” issue shows that their reason for refusal was not simply the message but a specific inference from the message, so the comparator should reflect the nature of the plaintiffs inference.

    Your third paragraph should be answered again by this “what caused the treatment” point. It is not general broad principals that are at issue, but the very specific treatment offered an individual at a particular time, and in response to the plaintiffs perception.

    Again, with the “other the type of cake” arguments, so endlessly repeated in posts, this is something of a red herring and is not the real issue. It is simply the treatment of the individual. Instances provided by the plaintiffs clearly pointed to the causation source of their refusal.

    I am not a law professional, simply someone who has in my career become somewhat familiar with legal language. For a more authoritative analysis, you may need to take legal advice from a professional, and even in that there is no guarantee of where any individual case may lead.

  • SeaanUiNeill

    Daniel, I think I’ve at least sketched an answer to this above. Certain evidence offered by the Ashers’ owners in court supported an understanding of their action as discrimination against the individual.

  • SeaanUiNeill

    Ian has answered this as I would, Daniel. There is no unlawful discrimination as long as the service they offer is entirely available to all. If they do not offer a service that works without qualifications from the customers own designs, they cannot provide that service.

  • Carl Mark

    Seaan always is, I like to think of him as the history teacher I should have had!

  • Carl Mark

    I believe it is called market forces.
    Goes like this,
    1/ Asher (or any business) takes anti gay stance,
    2/ People think that if they don’t want to do business with my gay friends/relatives then they don’t want my business.
    People power my friend.
    Boycott is a powerful weapon ask any Afrikaans. (didn’t they think god told them that different people were not entitled to be treated equal) the boycott done for them.

  • Thanks for taking the time to help clarify. I’m not sure I fully agree with the logic of the judgment, but I think I understand it better anyway. I see what you’re saying; even if the McArthurs genuinely believed they weren’t discriminating on the basis of orientation/political belief, that is irrelevant if what they did had the effect of discriminating (without motive/knowledge). And to claim that they might have been oblivious to the potential discriminating nature of their decision does not stack up anyway in light of the concerns they expressed amongst themselves prior to taking the decision to refuse the order. That makes sense.

    So, is it fair to assume then that an Muslim printer who offers a general printing service – “print what you like (so long as it’s legal)” – would actually be legally obliged to print (not necessarily mocking) depictions of the Prophet (which would also be haram by virtue of Islam’s aniconism) upon request by order?

  • SeaanUiNeill

    In this my experience, Daniel, law and logic are rather different things. Its a truism that “ignorance is no defence in law”, and that many of the arguments The important thing is that, imperfect as it is, our equality legislation goes through the motions of blocking discrimination to some degree, despite being a rather crude devise.

    I’ve read your own blog on this and as a one time active Anarchist, I find some of the issues troubling also, but I feel that the ability of the law to ensure that all of us can expect equal treatment in public life is more important than the libertarian “right” of each and every one of us to be able to express everything we think and feel in that public sphere, especially where acting on such opinions may indirectly serve to harm others. The triviality of the cake issue has obscured the fact that what is actually going on is that people involved in a commercial venture have been treating another person in different manner to how the would treat others, from a pre-existing private option that “homosexuality is sinful”. That’s the core of the issue. Whether the purchaser were straight or gay is irrelevant, the vendors motive for treating him differently was inspired from a discriminatory position. That’s about as clear as I can make it. Every other issue is secondary.

    If this is diluted by “conscience” issues then the entire structure of general protection of each and every one of us from discrimination will unravel, because permitting anyone to discriminate for any reason whatsoever, no matter how honestly held their belief is, offers a legal precedent for any other more extreme “opinion” to gain a handhold. The move to bring conscience issues into law looks like a move to simply ensure other freedoms for a different group of people, and for any decent person simply looking for a common sense resolution to the apparent removal of rights for conservative Christians that this judgement seems to imply looks intuitively right. But for those who have always hated the equality legislation because it has constricted their ability to cat publicly against those they hate, it must open the possibility to argue far more sinister aspects of “conscience” than simply the refusal to decorate a cake.

  • “Whether the purchaser were straight or gay is irrelevant, the vendors motive for treating him differently was inspired from a discriminatory position. That’s about as clear as I can make it. Every other issue is secondary.”

    Is this to suggest that even if Mr. Lee identified as straight but was asking for the same cake, Ashers would still have been guilty of unlawful discrimination on the basis of sexual orientation (rather than simply political opinion)?

  • SeaanUiNeill

    Daniel, in law it’s what actually happened that is evaluated in a judgement. Each case should really be rooted in a time and place and in relationships between real people, to be properly evaluated, but if you wish for a rule of thumb, in any situation you can imagine, simply ask yourself the question, “why did the vendor refuse service?” and the answer should become obvious.

    In your hypothetical case they would be perhaps guilty of unlawful discrimination if they refused him on an assumption of his political views, as the judge has put it, “his association with gay issues”. It is the “thinking” of the vendor which motivated an act of refusal that is discriminatory, and this is in no way determined definitively by the sexual orientation of the prospective purchaser or the simple act of refusal itself, which is what most commentators are getting bogged down in. Inability to make the design, say the breakdown of their printer, would have been something that would have affected every customer, all of whom would have been similarly refused no matter what their sexuality might have been, but motivated refusal of any service to any one customer on grounds of how he is perceived by the vendor is the thing. Straight or gay, religious or political affiliation, membership of any race that piques the vendors ire, all qualify if they have motivated refusal, but even a flippant refusal because the customer had red hair counts and would have been just as discriminatory.