Wednesday, 20 May 2015

Ashers Bakery judgement generates controversy

Updated again Thursday evening

Judgement was given yesterday in the case of Lee v Ashers Baking Co Ltd & Ors, in the Northern Ireland County Court.

The full text of the decision by Presiding District Judge Isobel Brownlie can be found here. A PDF copy of that file is also available here.

Some writers think this is a good decision:

Joshua Rozenberg Guardian The ‘gay cake’ ruling is a victory for equality in Northern Ireland

Mary Hassan at Huffington Post Finally: A Victory for the LGBT Community in Northern Ireland

Colin Murray Ashers Bakery Loses “Gay Cake” Discrimination Case

But other commentators are critical:

Savi Hensman at Ekklesia Ashers bakery ruling sows confusion about discrimination

Peter Ould at Psephizo The ‘Gay Cake’ ruling

Neil Addison Ashers Bakery and the “Gay Cake”

Mark Woods at Christian Today Ashers’ Bakery: The real loser here is a tolerant society

The Christian Institute reports Ashers owners speak out for first time about ruling, and that link also leads to a video interview.

The Telegraph has this editorial opinion: Icing on the cake as well as Bert and Ernie gay marriage cake ruling ‘banishes religion from commercial world’ and The ‘gay cake’ ruling against a Christian bakery could lead to even more discrimination

Updates

Frank Cranmer at Law & Religion UK has this: Lee v Ashers Baking Co Ltd & Ors – an analysis

Simon Jenkins has written this for the Guardian The moral of the gay wedding cake row: the law can’t create tolerance

Alasdair Henderson at UK Human Rights Blog Conscience and cake

Posted by Simon Sarmiento on Wednesday, 20 May 2015 at 3:27pm BST | TrackBack
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Categorised as: equality legislation
Comments

It is utterly bizarre for Peter Ould to criticise the judge for assuming that those who wish to enter same-sex marriage are most likely gay. Is Ould seriously suggesting it is sensible for heterosexuals to marry a same-sex partner? Or conversely a gay man to marry a straight woman? That would be cruel and risky to the happiness of both.

Posted by: FrDavidH on Wednesday, 20 May 2015 at 5:34pm BST

A very good analysis of the judgement can be found here:
http://humanrights.ie/civil-liberties/ashers-bakery-loses-gay-cake-discrimination-case/

Posted by: Erika Baker on Wednesday, 20 May 2015 at 8:02pm BST

Savi Hensman is one of the best Christian commentators on equality and inclusion. However, her comment about an atheist florist is puzzling. If someone is in to the business of selling goods and/or services then, within the limits of law, they should not arbitrarily decide what customer opinions they will or will not favour. Christians, humanists, those of other faith or secular traditions, or of none - all should be entitled to equal commercial treatment.

Posted by: David Bunch on Wednesday, 20 May 2015 at 8:33pm BST

This is a hard case which will continue to divide opinion. I have taken the view that it is solely about the law, not conscience, morals or anything else. This was a discrimination issue, concerning protected characteristics (under NI law which includes political opinions). That may seem to be a positivist position but it was, by definition, at the core of the case and no amount of picking holes in what is a robust and clear judgment will help. Joshua Rozenberg's summary in the Guardian is spot on and in these cases it pays to turn to lawyer journalists. "The directors of Ashers bakery remain free to hold their religious and political beliefs. We all do. But people who provide public services cannot pick and choose their customers on grounds of their sexual orientation, their political opinion or, indeed, their religious beliefs. And that is how it should be." Being a cynic, although this has been denied by those who know the neighbourhood and local availability of bakers, I feel sure the plaintiff was put up to this. The response of Ashers was naive. As the judge inter alia mentioned, there was no attempt to fulfil this order in a way which did not compromise their religious beliefs, e.g sub-contract it. They must have known full well that this would lead to litigation. And, by the way, there seems to be some suggestion that they have a decent trade in Halloween cakes, on a seasonal basis of course. Can anyone confirm or deny that?

Posted by: Anthony Archer on Wednesday, 20 May 2015 at 8:38pm BST

"Admittedly it can be especially painful to those of us who are LGBT, and/or women, when other people fail to see the value of full inclusion in all walks of life. But giving governments too much power, in a way that interferes with freedoms of expression and belief, is not the answer."

- Savi Hensman -

Dear Savi, normally, I agree with most of your conversation on the subject of LGTB people, but I'm afraid I must take issue with you on this:

The bakery is providing a public service for money. This renders it liable to provide what the customer want, within the law of the land.

Now that Same-Sex Marriage is legal, the baker - like all other organisations providing a public service for gain - has no right to withhold itself from the provision of what is perfectly legal - as the judgement has decided.

The only alternative would be for the bakery to not operate for profit - in order to please only the people it seeks to serve. This is what might be called 'natural justice' under the laws governing trading practice.

Posted by: Father Ron Smith on Thursday, 21 May 2015 at 12:50am BST

As a Northern Irish Protestant (but one who has, I hope, grown up a bit over the decades), I support this judgement 100%. It's clearly correct. Interesting, of course, also to note that the Ashers do not seem to have been fully honest in their protestations: often the way, when you're a fundamentalist Christian, you'll sacrifice standards of integrity in support of the great goal. Oh, come to think of it, that also applies to our revered archbishops.

Posted by: John on Thursday, 21 May 2015 at 8:27am BST

Rev ron smith:

Same-Sex marriage is not legal in NI. The referendum has not yet taken place.

Posted by: Mark Wharton on Thursday, 21 May 2015 at 9:57am BST

I think Savi Hensman's point is that by putting a piece of advocacy on the cake ("Support Gay Marriage"), instead of just testing whether the bakery was willing to sell to a gay individual, or to cater for a same-sex wedding, another issue was introduced. Of course they shouldn't be allowed to refuse service to categories of people, or to categories of event - that's a straightforward matter of civil rights. But the writing on the cake is speech, and by framing the test case this way, the civil rights issue gets tangled with a free speech issue. Should you, because you're open for public business, be compelled to utter (or to help utter) opinions you disagree with? Even in icing form?

Posted by: Francis on Thursday, 21 May 2015 at 10:50am BST

Ron, marriage of same-sex couples is sadly not yet legally recognised in Northern Ireland - the point of the cake was as part of a campaign for change. It seems strange that a state which has decided that it is acceptable not to let same-sex partners marry should seek to force businesses to assist a campaign against its own decision!

The issue is whether providing services to people is the same as promoting beliefs and causes (e.g. if a Catholic bakery is expected to sell birthday cakes to ultra-Protestants, as is right and proper, must it also be required to ice a cake with the words 'Praying to Mary is superstitious nonsense'?)

Posted by: Savi Hensman on Thursday, 21 May 2015 at 12:10pm BST

So, under Northern Ireland's law that prohibits discrimination based on political opinion, if a baker were asked to put "God hates gays," on a cake, would she have to comply? I think this is different from those cases here in the U.S. where bakers have been sanctioned for refusing to make a cake for a same-sex wedding. Wedding cakes don't typically have political messages on them.

Posted by: Paul Powers on Thursday, 21 May 2015 at 12:10pm BST

"they have a decent trade in Halloween cakes, on a seasonal basis of course." Antony Archer.
The Eve of All Hallows is of course a Christian celebration!

Posted by: Paul Richardson on Thursday, 21 May 2015 at 4:09pm BST

What is it with Christian-owned bakeries?

Here across the Pond, in the US of A, we've also had bakers, along with butchers, pizza makers, and maybe even candle-stick makers saying their religious views declare that gay couples are unfit to receive their services.
First,
As far as I'm concerned, these religiously-uptight folks are saying "We are right with God, we are pure, and if we sell you heathen sinners a cake, we will be doomed!"
I have railed against people who too easily believe the caricatures of the Pharisees in the Christian Gospels -- but, these uptight tradespeople sound exactly like those same Pharisee caricatures!
Didn't Jesus consort with all sorts of "those people"? You know, the people the "proper sort" would never dream of sitting down to dinner with, or giving assistance to after they’d been beaten up and left for dead on the side of the road, or selling them a wedding cake?
Second,
The intent of anti-discrimination laws is clear: If you open a business to the public, you are open to ALL of the public. You are not there to cast judgment, you are there to provide a good or service. If two people walk into your establishment, and they want you to make them a wedding cake, you find out what they want, and when they want it. And, based on that, decide whether to discuss your price and your ability to make the cake.
Period.
A wedding cake maker is not officiating at the service, just baking a cake. Feel free to condemn “those kinds of people” in your church, but offer the same level of service to all customers – or stop making wedding cakes.

Posted by: peterpi - Peter Gross on Thursday, 21 May 2015 at 8:06pm BST

Father Ron Smith - purely as a matter of information - Same Sex Marriage is not recognised in Northern Ireland.

Posted by: Bernard on Thursday, 21 May 2015 at 8:25pm BST

Well, Jesus appeared to want to banish commercialism from the religious sphere, at least as far as the Temple was concerned. This all goes back to the idea that freedom of belief somehow entails other beliefs not existing in one's little world. Once one enters public commerce, one is free to keep religious beliefs, and even some religious practice (such as closing on the sabbath); but one cannot keep one's customers from also having religious beliefs, beliefs that conflict with one's religion, or no beliefs at all. Although you can meet saints "in shops or at tea" I'm not sure the proprietors need be in on the action.

Posted by: Tobias Haller on Thursday, 21 May 2015 at 9:28pm BST

It is worth noting that, according to the judgement, '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.'

So it would appear that, if the judge is correct, a gay graphic designer could be required by law to produce posters urging people to 'Defend traditional marriage'. This does not seem like much of a victory for freedom.

Posted by: Savi Hensman on Thursday, 21 May 2015 at 11:29pm BST

Years ago after a frosty ride across Exmoor, a nice warm bar refused to serve me tea and showed me the door because they 'didn't serve bikers'. Admittedly I was quite perplexed and upset about it at the time, but came to conclusion that since it was their business, they reserve the right to serve whom they like. Besides, there were other tea shops and bars who accepted motorcyclists close by in any case.
It's about time the homosexual community grew up.

Posted by: Paul Hitchcock on Friday, 22 May 2015 at 1:31am BST

Peterpi, if this were about refusing to bake a wedding cake for a same-sex couple, I would agree with you. It's just a cake. In this case, though, the bakery was asked to put a political message on a cake ("Support Gay Marriage") with which the owners disagree. It's my understanding that this ruling is based in part on a law unique to Northern Ireland that forbids discrimination based on political beliefs. The motivation for this law (preventing, for example, a merchant who's in favor of NI remaining in the UK from refusing service to a customer who favors unification with the Irish Republic) is understandable in a country that's still recovering from decades of internal strife. But if the court has correctly interpreted this law, wouldn't this mean that a Jewish baker would be required to fulfill a customer's request for a cake with a swastika and the slogan "Hitler was right"? If not, on what basis would the distinction be made?

Posted by: Paul Powers on Friday, 22 May 2015 at 1:59am BST

So, here it is again, across the ocean, this time. I understand Savi's position, and am, frankly, torn. Private and public intersect in strange ways, where business is concerned. "We reserve the right to refuse service . . . " is a rather hallowed tradition.

The test for me came in the U. S. when riders were attached to various religious freedom bills that would require the business to post clearly and publicly to whom they would refuse service. If it were truly about conviction, this would have been welcomed by supporters of these religious freedom bills.

It was roundly, loudly and with great weeping and wailing and gnashing of teeth *rejected*. Why? Well, people might get offended and stop using my services! So, it isn't about conviction - it's about sheer bigotry, and the "right" to be offensive to people who've come to use your services, while still avoiding any sort of consequences. Conviction will bear consequences.

I realize laws and approaches to the intersection of public/private are handled *somewhat* differently in other nations, however. I just wonder what would happen if the bakery were given that option, to discriminate, as long as they are fully forthright about it.

Posted by: MarkBrunson on Friday, 22 May 2015 at 5:51am BST

Savi,
"So it would appear that, if the judge is correct, a gay graphic designer could be required by law to produce posters urging people to 'Defend traditional marriage'. This does not seem like much of a victory for freedom."

But that's exactly the point. Northern Ireland with its political history has, rightly for its context, decided that political expression is to be protected.
And that means all political expression. And yes, that's freedom.

I just wish people offering commercial services stopped believing they're "promoting" or "condoning" anything by serving a customer.

Posted by: Erika Baker on Friday, 22 May 2015 at 9:09am BST

Like Mark Brunson, I am torn. I do not find the first part of the judgement persuasive and have explained on my blog why. The second seems to me to have greater force and maybe within NI law is the right decision. But as Savi pointed out it is not as simple as "The bakery is providing a public service for money. This renders it liable to provide what the customer want." Whatever the customer want?

There is a difference between, on the one hand, refusing to sell to a customer one of the products that your company sells and, on the other hand, refusing to make a product to certain customer specifications. The former is usually a form of direct, illegal discrimination (the discrimination is of course legal and indeed demanded when, e.g., asked to sell alcohol to minors).

To my mind this hinges on the question whether the cake in view should be considered a generic cake or a specific product, see http://bit.ly/1AoxcGD. The former may be necessary under current NI law although its consequences are potentially nasty.

Posted by: Thomas Renz on Friday, 22 May 2015 at 10:29am BST

On the political issue, it's about political discrimination, i.e. differential treatment of political views. So I think it would be perfectly legal for a bakery (or a printshop etc) to have a blanket policy that "We will not decorate cakes for political causes" or "We will not print offensive slogans on our T-shirts" and not be held to be discriminatory. What you can't do in Northern Ireland is say "we'll decorate cakes with Catholic symbols but not Protestant ones" or (anywhere in the UK) say "we'll print T-shirts saying 'Adam loves Eve' but not ones saying 'Adam loves Steve' because that's offensive".

Posted by: magistra on Friday, 22 May 2015 at 11:17am BST

"Years ago after a frosty ride across Exmoor, a nice warm bar refused to serve me tea and showed me the door because they 'didn't serve bikers'. Admittedly I was quite perplexed and upset about it at the time, but came to conclusion that since it was their business, they reserve the right to serve whom they like. Besides, there were other tea shops and bars who accepted motorcyclists close by in any case.
It's about time the homosexual community grew up."

And what happens to the discriminated-against in the communities where multiple choices for a service are not readily available? I don't know how it might be in the rural areas of the UK, but here in the States, it is not unusual for a small town to have but one bakery, one funeral home, one venue that rents space for celebrations like wedding receptions, even only one pharmacy. The next nearest one might be tens of miles away. Is the gay couple who want to celebrate their marriage with friends and family expected to have to move the whole thing to another town because the baker, or the space renter, will not serve them? Is the survivor of a gay couple to have to hold his love's funeral many miles away, because the "good Christian" funeral director will not bury his significant other?

Posted by: Pat O'Neill on Friday, 22 May 2015 at 11:53am BST

An alternative solution for the service provider is to provide the goods/services and then make their contrary opinion known.

For example, the hotel where our wedding reception was held last year accepted our booking and provided the service to us as they were legally obliged to do. Unbeknownst to us, the owner was, at the time, extremely anti-gay and was subsequently interviewed by the media where he gave his perfectly lawful opinion that men marrying each other was 'nonsense' and that 'next we'll be marrying pigs'. A number of people boycotted the hotel as a result but I am sure that others may have supported his views and patronised the hotel all the more, as is their right. Still others may not have cared either way.

As a coda to this story, I have to add that the hotel owner has since, apparently, changed his mind and has apologised in person to my husband for his earlier remarks.

Posted by: Laurence Cunnington on Friday, 22 May 2015 at 3:21pm BST

I wonder if Paul Hitchcock chose the lifestyle of a biker, or perhaps was he born that way. If it's genetic, he won't be able to get off his bike and walk. What a pity some businesses won't serve men who have no choice except to ride a bike.

Posted by: FrDavidH on Friday, 22 May 2015 at 10:26pm BST

I have misgivings about making Christians write words on cakes that are an affront to their conscience.

Similarly, if I asked a Muslim baker to inscribe the words 'Eat pork' on a cake, I think that also would be unkind, offensive, and setting out to put him or her in a legal predicament.

I certainly think - in general terms - Christian hoteliers should be obliged to accommodate gay couples (otherwise we go back to a 'No blacks or Irish' situation)... and I also think that Christian bakers *must* be willing to serve everyone, regardless of race, creed or sexual orientation.

However, I think case law probably ought to define certain limits. To sell a cake is one thing. To be legally obliged to inscribe words against your deepest conscience is another.

I say this, even as a lesbian woman. I personally think that the request for this cake to include its wording the way it did, was disrespectful and fundamentally unkind.

Posted by: Susannah Clark on Monday, 25 May 2015 at 8:09am BST

Susannah,
" I personally think that the request for this cake to include its wording the way it did, was disrespectful and fundamentally unkind."

You're assuming that the person who ordered the cake from a large bakery with outlets in 7 towns knew that the top management did not agree with same sex marriage.

And you're assuming that the person who ordered the cake could expect the management of the bakery to be unaware that political speech is a protected criterion in Northern Ireland, or that they would deliberately ignore the law.

Have we really got to the stage where someone's perfectly legal and legally protected request has to be treated like a risky adventure and where they had better tread very carefully and conduct plenty of complex background research before going into a shop to order a cake?

Posted by: Erika Baker on Tuesday, 26 May 2015 at 9:03am BST

Erika,

I may indeed be wrong to assume that the complainant knew that the management was Christian.

If, has been reported, the complainant was already a gay activist, then that leaves me wondering if there was a deliberate intent to 'test the limits' and 'assert legal rights' over other people's consciences.

But I admit I could be wrong about the intent here.

I just think there should be more give and take. To quote the defence: "If the plaintiff is right, a Muslim printer could not decline printing a cartoon of the Prophet Muhammad. An atheist baker could not decline baking a cake with the slogan God made the world in six days. A gay baker could not decline to make a cake with the message gay sex is an abomination."

As someone who identifies as LGBT, I do not think I should be abused, but I respect that some people in good conscience hold different values to my own. Personally, I would have taken the request to a different bakers.

Posted by: Susannah Clark on Tuesday, 26 May 2015 at 3:20pm BST

Susannah,

There are many "gay activists" on these pages too, I would be surprised if a single one of us knew what our local baker thinks about marriage equality.
It absolutely must be possible to walk into a shop, any shop, and be served like anyone else without first having to consider all possible political or religious sensibilities of any of the staff, from the front of house person to the one who ices the cake to top management.
Society cannot function if one single group of people has to tread carefully for fear that who they are and what they believe offends others so much that they'd rather not serve them.

Could a Muslim printer not decline to print a cartoon of Muhammad?
Do we know this?
Does anyone here understand Northern Irish law sufficiently to be absolutely sure that this would not come under religious protection, as it is an absolute commandment for Muslims not to print images of Muhammad?
Whereas the bible is very silent on an Ernie and Bert wedding cake?

And no, an atheist baker could not decline baking a cake with the message that God made the world in 6 days. Nor could he decline a birthday cake with the Loch Ness monster on it.
Why on earth should he even want to?

Do we seriously expect that we must agree with everything work throws at us?

Could a gay baker be forced to bake a cake saying that gay sex is an abomination?
Does anyone know this for sure? Sexuality is a protected criterion, maybe the baker could not be forced?

But if that baker was a Christian, I sincerely hope he would bake that cake.
We are asked to walk another mile, to turn another cheek. Not to seek special status.
Christian bakers, bake the cake and then bake an even bigger one with your own message on it.
Christian printers, print that T-Shirt and then print 50 others with your own message on them.

And don’t think that your own Christian beliefs, whichever way they take you, override the law or that people should bend over backward to make absolutely sure that you never have to do anything that offends you in the slightest.

Posted by: Erika Baker on Wednesday, 27 May 2015 at 9:37am BST
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