Qualms about Asher’s Law but none over the gay marriage referendum: spot the difference

Forgive me if I take a new post to reply to Mick on Asher’s Law.  I think he stretches the point about law and politics too widely. Let’s unpick this a bit. The sexual orientations order was passed under direct rule, by Peter Hain, not the Assembly. That makes it no less law. But it was one of those measures foisted on our politicians to try to force them to do the deal on restoring the Assembly. The message was, if you don’t like these progressive laws, re-form the Assembly and pass you own laws.

The UK Human Rights Act 1998 is basic law for NI and is embedded in the GFA. It incorporates the European Convention on Human Rights ( ECHR) into UK law and allows  appeals to the European Court of Human  (E  Ct HR) at Strasbourg.  No new British Bill would be likely to remove any human rights but in a basic form would remove the right of appeal to Strasbourg embedded in the NI Act 1998 and the international treaty that is the GFA. The GFA binds governments but not the sovereign parliament. In theory . That’s the immediate issue. In practice, it’s inconceivable that the right of appeal to Strasbourg will be removed, at least for NI and Scotland.

There is indeed a theoretical dispute over whether a Bill of Rights should extend social and economic rights which supporters of a “ political” constitution  believe is more the business of politicians. This is why the proposal for a Northern Ireland Bill of Rights is in deadlock. Put crudely, unionists believe the above while nationalists and supporters of a “ legal “ constitution  distrust legislatures which have a unionist or British conservative majority. They would prefer as many rights as possible to be enshrined in our law which is already replete with anti- discriminatory legislation.

Equality is the ultimate relativist position at rest and is value free until context is supplied.  I utterly  support the Yes side in tomorrow’s referendum although  I have a sneaking sympathy  for those who wish to retain the word “ marriage “ for a hetero couple.  Like many decisions, legal or otherwise this is a decision  to be taken on balance, because enough people want it. The oppression has been lifted already. But it’s a heartening fact that more and more societies – even ours – are recognising sexual equality.

In law however, particular examples matter. Rightly  the law restrains  the blind application of principle. Like winner- take- all majority rule for example. Remember that one anywhere?

Does equality work in every individual case where no harm can be demonstrated such as not labelling a cake?   Must an all-male or an all- female club admit the opposite sex?  And what happens to freedom of speech and conscience where no harm can be shown?

Although  I recoil every time  at  the moralism of our wee Ulster, I agree that the Ashers ruling has gone too far and has exposed the drawbacks of equality legislation. The state looks oppressive by the Equality Commission’s support for the case. They should have restricted their role to expressing an opinion.  I understand but do not  share Patrick Corrigan’s elation. Overall though, the architecture of human rights and equality  that in this case seems  burdensome provides essential protection for people of all opinions. Just think what it was like, and where we’d be now, without it . We can afford  to have a go against Asher’s ruling.

That noted libertarian Simon Jenkins has made a swingeing attack on it and on our political culture in the Guardian. I don’t agree with every single word but by drawing on outside examples he makes a powerful case.  His message: The moral of the gay wedding cake row: the law can’t create tolerance.

A Christian walks into a Muslim sign writer’s shop and orders a placard. He says it should carry a cartoon of the prophet and the slogan Muslims Go Home. The sign writer is deeply offended and says he cannot execute the order. The customer is outraged at the discrimination, is supported by the equality commission, sues, and the sign writer is fined £500 plus costs.

I think most people would find such a saga absurd. Why did the Christian not acknowledge a difference of opinion and go elsewhere for his placard? Yet that is the gist of the case this week against Mr and Mrs McArthur, owners of Ashers Baking Company in Belfast.

The judge took the view that the refusal to write the slogan was direct discrimination against Lee’s sexual orientation. The McArthurs denied this, retorting that they sell cakes to many gay people; it was the slogan that neither they nor their staff could write. They would have felt the same had Lee been heterosexual. The judge chose to disagree, saying in effect that their action was no different from a restaurant refusing to serve a black person. To my mind, a better parallel would be the Catholic Herald refusing to publish an anti-Catholic tirade.

That gay marriage is still illegal in Northern Ireland is a grim comment on Britain’s long and incompetent custodianship of Ulster’s government. It lacked the guts to unite the liberal values of a so-called united kingdom. I therefore sympathise with those determined to keep up the pressure.

The slights, sometimes petty, sometimes cruel, that afflict any community cannot be regulated by the law. The crooked timber of mankind cannot be straightened at the crack of a legal whip. Most English people who get to know Northern Ireland tend to be charmed by it yet shocked at its ongoing factionalism. Homophobia, religious prejudice and creationism are still endemic. Muir has called for “respectful dialogue and commitment” on gay marriage, yet he welcomed the ruling against the McArthurs. It will surely just exacerbate the province’s divisions.

Having failed to bring greater religious tolerance to Northern Ireland, the British government hopes to expunge its negligence by enforcing change through the pettier applications of the law. That is not the sensible way. Bringing this case was a mistake. The law can be right, but it can still be an ass.







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  • Rational, credible thesis, well argued. Same old social engineering.

  • emcg575797

    “A Christian walks into a Muslim sign writer’s shop and orders a placard. He says it should carry a cartoon of the prophet and the slogan Muslims Go Home. The sign writer is deeply offended and says he cannot execute the order. The customer is outraged at the discrimination, is supported by the equality commission, sues, and the sign writer is fined £500 plus costs.”
    If I was to go to any sign writer’s shop asking for the above I would probably be refused, not because of someone’s religious beliefs, but because what I was asking for would be considered offensive. Which is completely different kettle of fish. In the Asher’s case they refused on the grounds that they disagreed with the message on the cake, and that by baking the cake they would be showing support for gay marriage. The judge disagreed with that.
    A better example would be the Eat More Bacon Alliance being told that they cannot get their pamphlets printed by a Jewish printer. But I don’t think that is quite as sexy.
    However, all this talk of religious printers/ bakers/ sign writers is all a red herring, because an organisation cannot have a religious identity in the eyes of the law. While a company can have a religious ethos, it has to be morally neutral. Remember the exception being asked for Roman Catholic adoption agencies a while back, and what happened there?
    At the end of the day the NI law is precisely the same as it is in the remainder of the UK. So, if the same thing was to happen in Wick, Cardiff, or Bradford we would get the same outcome. I don’t think that the issue is the equality law (even though I would agree that the Judge saying that the discrimination was on the grounds that the customer was known to be gay is a bit of a stretch), but that these things still happen in our little part of the world.
    Of course waiting for our politicians to fix these things are frustrating. As it seems that each time they need to make a hard decision, they squabble to a deadlock and hope it goes away. So, while the law cannot create tolerance, it can certainly enforce it.

  • Le Cochon Bleu

    Judge Brownlies’ decision in the “Ashers’ law” is a monstrous disaster for liberty, commerce, normal freedoms and human rights.

    It needs to be overturned.

    In the meantime, any business who makes items to order from customer request, who are Christian or can’t support gay marriage, will need to go to the bother of declaring in their stores, on their flyers and ads, on their web pages etc, a message something like:

    “We do not accept orders in connection with messages of marriage except in connection with a religious rite, due to the nature of our personal beliefs.”

    Why Judge Brownlie cannot accept this in the first place is something unanswerable. Why make shops businesses clarify their retail offers in this way – to appease a paranoid minority? That is, a tiny minority within a social minority. I think most people who identify with the term homosexual probably would not agree that Judge Brownlie has acted in anyone’s best interests, either for everyone in the marketplace or the cause of gay rights.

    It’s sad that things go this way, because the judge seems simply to have gotten the basics of law wrong. A business has their vision of what they are going to sell and what they simply will never sell. It can not be up to the customer to walk in like a Stasi force member or KGB apparatchik and declare with menaces backed by Kafka-esque pseudo courts (which don’t understand the law) what the business sells, against the stock desires of the business.

    Sure, of course, when the business has decided what it is they are going to sell and what they’ll never sell, they have to sell their items equally to every person – no picking or choosing. If they didn’t that would indeed be illegal discrimination in discrimination laws. But you can’t let “customers” dictate what the shop is to decide it sells in its business and what it doesn’t.

    People have got really mixed up in this situation, not least the judge. It’s an insane verdict.

    Please believe me when I tell you that Judge Brownlie is wrong in law that Ashers should be forced to make the cake, and wrong in the claim that Ashers discriminated (ilegally in discrimination law)

    The very point about all of this itself IS that EVERYTHING a business does – every single decision about WHAT it sells (but not who it sells to) IS discriminating. (But that’s nothing to do with discrimination laws or equality laws, it’s just the basics of how life works, and it does not discriminate legally against anyone. It is NOT AGAINST anyone, it is just the choice of a business.

    (Paranoid minorites need to realise this before they hold the world to ransom for offences in selling homogenised milk etcetera etcetera. I see articles today saying that Google Maps has had posts with a slogan near Ashers’ address saying something like that homosexuals should be killed. The people who took this case against Ashers’ do not realise just how far they have set back their own case for social equality, because of the ridiculous, anti-legal decision which has nothing to do with illegal discrimination.)

    It must be just the choice of a business to sell what they wish and to discriminate totally, 100% in separating what they want to sell from what they will never sell. For that is THE ENTIRE POINT of going into business in a capitalist, commerce based, libertarian society such as this. Outside of communes growing and selling under strict principles (which are still THEIR OWN principles and decisions, even if perhaps not supported by all), there is no other point in business.

    Every single thing a shop does about what it chooses to sell is ENTIRELY DISCRIMINATION. It is always exercising its own choice to sell exactly what it likes, exactly what it chooses. That’s how businesses are formed and how the continue, how they run every day. They don’t run any other way. There IS NO other way, at least outside of severe communism.

    A business – every single business – is all about and only about BEING DISCRIMINATING in every single decision it makes about what it sells and even when. (But not to whom).

    It’s the very definition of what a business is.

    If you take that away – you’re left with nothing. All of the laws in commerce, contract law and human rights only support this most fundamental definition of what a business is.

    Therefore, Brownlie’s decision not just upsets the apple cart, but turns it over irredeemably. If sustained, it would change most practices of business in capitalism. And they’re good practices too – right practices – clearly entrenched in the best human rights laws. But even more than that – they’re necessary, absolutely necessary practices lest the society suddenly become communist / fascist.

    Not just arbitrary laws for no sake which enable some upset people who think in sect-like group terms to take “minority offence” (whatever on earth that is, it doesn’t mean much to actual adults of any persuasion).

  • I started out outraged at the abridgement of freedom of conscience when I read the news reports. I found myself outraged for a different reason by the time I had read the judgment.


    No platform for gay cakes!


  • Ian James Parsley

    The problem with Simon Jenkins’ article – with which I am not entirely unsympathetic – is that it starts with a ludicrous example which in no way relates to the Asher’s case.

    No one is disputing that the Muslim would have rights in that case. Indeed, Asher’s would have had rights had it not specified that it would bake *any* cake to order.

    The fundamental issue is not one of freedom of speech but of *unlawful discrimination*. It is astonishing that so many commentators choose to ignore that.

    That is not to say I am comfortable with the whole judgment either. I am not.

  • SeaanUiNeill

    Ian, so many of those commenting are absurdly expecting the law to be some “Deus ex machina” that will resolve every associated problem that has been raised by the Asher case. As you say this particular law is crafted to discourage “unlawful discrimination”, not to effect some return to Eden before the fall.

  • Sprite

    of course in the “Muslim” example in this article, the most likely outcome is that the Muslim printer would have called PC Plod and the Christian customer would have been done for incitement to hatred

  • Clanky

    The Ashers judgement was, in my opinion, the right decision for the wrong reasons.

    Businesses should not be required to produce goods which supports political campaigns, had they refused to bake a cake which said “congratulations Lee and Steve, on your wedding day” then that would be discrimination, refusing to print something which says “Support Gay Marriage” wouldn’t be if it was done on the grounds that they didn’t wish to be seen to support a political campaign regardless of their religious beliefs.

    The fact that they said that they refused to bake the cake as it contravened their beliefs, but were happy to bake halloween cakes with pictures of witches shows that they were at best selective about which religious beliefs they used to support their refusal and at worst deliberately picked the beliefs which supported their prejudices. Had the judge ruled that Ashers had discriminated because of this then I would be happier about the judgement, but I think that saying that businesses should not be allowed to choose to not support certain campaigns or causes is wrong.

    If I was a baker and was asked to bake a cake saying support the DUP’s conscience clause I would want the freedom to say no, what I shouldn’t be allowed to do is refuse to bake a birthday cake for Peter Robinson.

  • Le Cochon Bleu

    How can you say the law was right? Did you know that in advance of the ruling by the judge? Or do you mean by right that it satisfies your feeling or thought? Which?

    “I think they were moralistic people caught in the headlights of an advancing world.”

    So being moralist is wrong? (Or at least unfashionable or something, and so, it seems, you think it should be stepped over, then stepped on until it is gone or at least invisible.) Morals are all about thinking about what you personally conceive is the right, about principles. Morals are about real values over empty nothingness or descent into uncaring evil. It conceives each person doing this for himself or herself.

    So how on earth can it be an advance to move away from moralist values, from such a world of values?

    As it is, if you do not want to discriminate against the freedom of each and every person to choose what means something to them and act by it accordingly, you must uphold the liberty of each individual to choose themselves principles.

    However, for you, “advance” in society means for everyone, not just some people, to leave behind thinking and acting by their own principles. The expression of their own individual identities. The celebration of their unique identity in their own lives. What do you think should replace that? Fascism? Communism? Or just anything new which is a change – some new kind of social toy you want to try for while, only for a change, before you throw it away for some other regime? The will of the mighty or the will of the unthinking herd above the liberty of the individual to think and choose and act with the brain which God gave him as part of his identity?

    Your world is scary and a Gatacca like universe. I foresee a Total Recall world from your eradication of the individual and the ability to think, choose and act by personal principles.

    I don’t want it. I want the old one back which people fought hard for, and where sensible laws were developed with thought over centuries.

  • Kevin Breslin

    Until the law creates a very unpleasant version of equality then people will look for more tolerant laws.