Return of the 'gay cake'

[The Accountant, OBE, KC]

Sauce. Goose. Gander.

https://www.pinknews.co.uk/2018/10/11/gay-cake-christian-institute-photography/?utm_source=Facebook&utm_medium=Buffer&utm_campaign=PN

I agree with this. I prefer a society where businesses have the freedom to decide who they will and won't do business with based on their ethical outlook. I think people should be free to disagree with each other's values and everyone should try to accept that others might dislike or disagree with their values or ethical choices and seek to persuade them to change by not doing business with them. I think that freedom is more important than hurt feelings.

[Aruntraveller]

I agree with this. I prefer a society where businesses have the freedom to decide who they will and won't do business with based on their ethical outlook. I think people should be free to disagree with each other's values and everyone should try to accept that others might dislike or disagree with their values or ethical choices and seek to persuade them to change by not doing business with them. I think that freedom is more important than hurt feelings.

To a certain extent I agree. I just want to remind posters, that to me at least, this doesn't feel as if it comes from any moral value held but from something much more base in nature. I could be wrong but as I posted elsewhere (or possibly here) if it walks like a duck, looks like a duck and quacks like a duck - it probably is a duck.

[ProfessorDavey]

I prefer a society where businesses have the freedom to decide who they will and won't do business with based on their ethical outlook.

I don't - that means that businesses would be able to refuse to serve black people if they were racist, or to hire muslim people if they were islamophobic. That is fundamentally opposed to basic human rights. And if this applies to businesses then why not other professional roles - a teacher allowed to refuse to teach a Jewish child, a doctor refusing to treat a gay patient.

We need to recognise the distinction between personal beliefs and ethics, and how someone needs to act in a professional or business context. Someone might be a raging racist in their personal belief, but if they are a doctor or in business you need to park those beliefs at the door the moment you start your working day and treat people without discrimination until the moment you leave at night.

[The Accountant, OBE, KC]

I don't - that means that businesses would be able to refuse to serve black people if they were racist, or to hire muslim people if they were islamophobic. That is fundamentally opposed to basic human rights. And if this applies to businesses then why not other professional roles - a teacher allowed to refuse to teach a Jewish child, a doctor refusing to treat a gay patient.

We need to recognise the distinction between personal beliefs and ethics, and how someone needs to act in a professional or business context. Someone might be a raging racist in their personal belief, but if they are a doctor or in business you need to park those beliefs at the door the moment you start your working day and treat people without discrimination until the moment you leave at night.

You misunderstood. This Supreme Court verdict does not alter the Equality legislation - you still can't discriminate based on protected characteristics and if Ashers had refused to make the cake because the person requesting the service was gay, then quite rightly the law prevents this. 

The issue is whether you can refuse to do business with someone because you disagree with their ethics or values - and the photography firm were able to refuse to do business with the Christian Institute on that basis. As much as a business could refuse to print leaflets that support changing to an immigration policy they disagreed with or they could refuse to print leaflets supporting the introduction of sharia law into English criminal law etc

[The Accountant, OBE, KC]

To a certain extent I agree. I just want to remind posters, that to me at least, this doesn't feel as if it comes from any moral value held but from something much more base in nature. I could be wrong but as I posted elsewhere (or possibly here) if it walks like a duck, looks like a duck and quacks like a duck - it probably is a duck.

If you mean Ashers rather than Perfocal, the photography company - I assume it comes from either their belief that homosexual sex is a sin or that marriage from their religious perspective is only between a man and a woman so they won't support the political idea of legalising gay civil marriages as they don't see a distinction between civil and religious marriages. I assume by "duck" you mean their outlook falls within the definition of homophobic.

[Sebastian Toe]

or they could refuse to print leaflets supporting the introduction of sharia law into English criminal law etc

Do you think thry could refuse to print you a leaflet announcing a bring and buy sale, because they know that you support the introduction of sharia law?

That's where it gets a bit grey and confusing for me!

[ProfessorDavey]

You misunderstood. This Supreme Court verdict does not alter the Equality legislation - you still can't discriminate based on protected characteristics and if Ashers had refused to make the cake because the person requesting the service was gay, then quite rightly the law prevents this. 

The issue is whether you can refuse to do business with someone because you disagree with their ethics or values - and the photography firm were able to refuse to do business with the Christian Institute on that basis. As much as a business could refuse to print leaflets that support changing to an immigration policy they disagreed with or they could refuse to print leaflets supporting the introduction of sharia law into English criminal law etc

But the distinction then needs to be between individual people, on the basis of protected characteristics, and ideas and organisations. The latter do not have protections in the manner that the former do. My concern is the blurring of the distinction, and indeed it is sometimes extremely difficult to determine whether someone is discriminating against the individual or against the idea. This was certainly the situation in this case as it was at the heart of the matter and there wasn't unanimity of view at the differing levels of the legal system.

In this case there were also complications around discrimination on the grounds of political beliefs which are more stringent (for obvious reasons) in Northern Ireland than in the rest of the UK.

So what about a similar, but hypothetical, situation where it wasn't a cake making a quasi-political statement, but a wedding cake. If a man came into a bakers and asked them to make a traditional wedding cake for his marriage to his husband and asked for the cake to be topped with two little male 'groom' figures - should a bakery be allowed to refuse to make it. This seems to be a clear cut case of discriminating against the person (who is clear being treated less favourable as they are gay rather than straight), but the bakery could claim that it was merely their objection to same sex marriage.

[The Accountant, OBE, KC]

But the distinction then needs to be between individual people, on the basis of protected characteristics, and ideas and organisations. The latter do not have protections in the manner that the former do. My concern is the blurring of the distinction, and indeed it is sometimes extremely difficult to determine whether someone is discriminating against the individual or against the idea. This was certainly the situation in this case as it was at the heart of the matter and there wasn't unanimity of view at the differing levels of the legal system.

In this case there were also complications around discrimination on the grounds of political beliefs which are more stringent (for obvious reasons) in Northern Ireland than in the rest of the UK.

So what about a similar, but hypothetical, situation where it wasn't a cake making a quasi-political statement, but a wedding cake. If a man came into a bakers and asked them to make a traditional wedding cake for his marriage to his husband and asked for the cake to be topped with two little male 'groom' figures - should a bakery be allowed to refuse to make it. This seems to be a clear cut case of discriminating against the person (who is clear being treated less favourable as they are gay rather than straight), but the bakery could claim that it was merely their objection to same sex marriage.

I think from what I remember of the legal arguments from when The case was initially brought, as same-sex marriages were not legal in NI, this was considered a political slogan to campaign for political change. That’s a different scenario from same-sex marriages being legal and refusing to make a cake for the wedding.

[ProfessorDavey]

I think from what I remember of the legal arguments from when The case was initially brought, as same-sex marriages were not legal in NI, this was considered a political slogan to campaign for political change. That’s a different scenario from same-sex marriages being legal and refusing to make a cake for the wedding.

Yes I understand the context of the NI case, but I'd be interested in your views on my alternative scenario assuming, for the sake of argument, this occurred in England where same sex couples can marry.

Should a baker being able to refuse to make a wedding cake for a same sex couple presuming that they'd happily make a wedding cake for a heterosexual couple?

[Rhiannon]

Should a baker being able to refuse to make a wedding cake for a same sex couple presuming that they'd happily make a wedding cake for a heterosexual couple?

I think the law is clear on that. If the cake is ordered by a wedding planner or other third party they might be able to refuse, but if it is ordered by one of the parties getting married then that is clear discrimination.

[ProfessorDavey]

I think the law is clear on that. If the cake is ordered by a wedding planner or other third party they might be able to refuse, but if it is ordered by one of the parties getting married then that is clear discrimination.

Surely even if it was ordered by a third party it would still be clear discrimination - probably direct discrimination, but certainly indirect discrimination, which is just as unlawful.

[Rhiannon]

Surely even if it was ordered by a third party it would still be clear discrimination - probably direct discrimination, but certainly indirect discrimination, which is just as unlawful.

Even if it is lawful it's a very easy one to get around.

[Enki]

Yes I understand the context of the NI case, but I'd be interested in your views on my alternative scenario assuming, for the sake of argument, this occurred in England where same sex couples can marry.

Should a baker being able to refuse to make a wedding cake for a same sex couple presuming that they'd happily make a wedding cake for a heterosexual couple?

My agreement with the Supreme Court's judgement rests purely on the grounds that a  political message was being delivered, and the business had every right not to promote that message.

As for your question, in my view this would amount to a clear case of discrimination against the same sex couple if the baker refused, so I would suggest that this would be against the law.

[ProfessorDavey]

Even if it is lawful it's a very easy one to get around.

How

[Gordon]

Even if it is lawful it's a very easy one to get around.

Yep - all any supplier need do if they don't fancy what is asked them is say that they aren't able to meet the request, for which there are any number of plausible excuses that would be an easy and smart way of opting out of certain work without rancour: 'can't do it pal, too many staff off sick you see, plus we're out of icing sugar anyway'.

Mind you, that way they don't get to proclaim their outrage at requested cakes being against their religions scruples.   

[Rhiannon]

Yep - all any supplier need do if they don't fancy what is asked them is say that they aren't able to meet the request, for which there are any number of plausible excuses that would be an easy and smart way of opting out of certain work without rancour: 'can't do it pal, too many staff off sick you see, plus we're out of icing sugar anyway'.

Mind you, that way they don't get to proclaim their outrage at requested cakes being against their religions scruples.

No, I don't think that works unless they can show that they refuse all orders at that time.

What I meant was that if a third party (eg a wedding venue) ordered the cake they could ensure compliance with equality legislation by directing payment directly from the couple.

[The Accountant, OBE, KC]

Do you think thry could refuse to print you a leaflet announcing a bring and buy sale, because they know that you support the introduction of sharia law?

That's where it gets a bit grey and confusing for me!

I think they could refuse. I think I’m right in saying a business can refuse to do business with you because they find you annoying and they don’t like you. They just can’t refuse because they don’t like your race, gender, disability, religion or sexual orientation. So long as their reasons for refusing are not one of those I assume you can refuse to print leaflets supporting Brexit or support lowering the age of consent for marriage etc etc

[Humph Warden Bennett]

To a certain extent I agree. I just want to remind posters, that to me at least, this doesn't feel as if it comes from any moral value held but from something much more base in nature. I could be wrong but as I posted elsewhere (or possibly here) if it walks like a duck, looks like a duck and quacks like a duck - it probably is a duck.

So you think that the court should have applied the "mischief rule", and found in favour of the Plaintiff?

[Spud]

This daft anachronistic hokum is confined to the English court.
Similar - though thankfully unrelated and much lestr faft - rigmarole happens in Scotland.
I don't know whether it happens in NI.
Either way, id ousn't happen in the so-called UK Supreme court; nor should it.

What about the hymn, reading and prayer that we used to have at my secondary school assembly every day, would you advocate that?

[The Accountant, OBE, KC]

Surely even if it was ordered by a third party it would still be clear discrimination - probably direct discrimination, but certainly indirect discrimination, which is just as unlawful.

I also think it would be discrimination - the baker would be refusing based on the couple getting married being homosexual and it doesn’t matter who is pays for the service. In this scenario the wedding planner would be acting as an agent for the principal - the couple who hired them. But even if the couple’s friends or parents hired them, it would still be refusal of service based on a protected characteristic. 

[Aruntraveller]

So you think that the court should have applied the "mischief rule", and found in favour of the Plaintiff?

No - as I said earlier on I sit uncomfortably on the fence on this issue. My view is that they were likely motivated by bigotry, that doesn't stop the law being wrong as it was initially interpreted. I just think this area is a fairly impenetrable minefield.

[Humph Warden Bennett]

This daft anachronistic hokum is confined to the English court.
Similar - though thankfully unrelated and much lestr faft - rigmarole happens in Scotland.
I don't know whether it happens in NI.
Either way, id ousn't happen in the so-called UK Supreme court; nor should it.

I think that you will find that the Supreme Court members take part in the procession.

[jeremyp]

I think the law is clear on that. If the cake is ordered by a wedding planner or other third party they might be able to refuse, but if it is ordered by one of the parties getting married then that is clear discrimination.

I think it depends on why they are refusing to bake the cake. If they are refusing because the customer is gay, that is illegal. If they are refusing because the customer wants them to put a message on the cake of which they disapprove, I think this ruling makes that legal.

I'm not gay or a part of any protected group. If I walked into their bakery and asked them to bake me a cake with a pro gay marriage slogan on it, nothing in law prevents them from refusing. Why should it be different if a gay person walks in with an identical request?

[SteveH]

Do you think thry could refuse to print you a leaflet announcing a bring and buy sale, because they know that you support the introduction of sharia law?

That's where it gets a bit grey and confusing for me!

Why shouldn't any business be free to refuse anyone's custom without giving a reason? There'd have to be exceptions to that, but I think there's nothing wrong with it as a general principle.

[Humph Warden Bennett]

Why shouldn't any business be free to refuse anyone's custom without giving a reason? There'd have to be exceptions to that, but I think there's nothing wrong with it as a general principle.

My contribution two years ago.

Quote from: Nearly Sane on October 25, 2016, 09:11:51 AM
Ashers lose appeal. I think this is problematic.

http://www.bbc.co.uk/news/uk-northern-ireland-37748681

FWIW I have a have a problem with this judgement as it would seem that the legislation in question is interfering with one of the fundamental conditions of contract, ie there must be consent. The complainants may well have had a case for breach of contract, but the disrcimination aspect seems to me to be OTT. I would not want to make a cake with a "pro choice" message on it (OK I concede that kind of thing is highly unlikely, but it's the unlikely events that make the consdieration of new legosaltion the timely process that it is.