On the Ashers Bakery judgment

The Ashers Bakery judgment has been published and the bakers are found to have broken equality legislation. The full judgment is worth reading and can be found here. For a helpful, and relatively brief, summary of why this is an astonishing (if somewhat unsurprising) result see Archbishop Cranmer.

It bears saying that the principle of equal service is a good and valid one. Few would disagree that service ought not to be denied to somebody simply because of their sexual orientation or political beliefs. A bakery that bakes standardised cakes ought not to refuse service to an individual simply because they are homosexual, subscribe to a political party whom the service provider does not or support a campaign the service provider does not/cannot. The Asher case, however, was never about the provision of a standard service being denied to somebody because of their religious or political beliefs. Rather, this was a case of somebody being denied a particular service that would have been denied to anybody else requesting that same identical service.

Rather than offer a summary of the whole case (others have done a better job of that already), I rather want to direct your attention to a handful of rather concerning elements of the judgment itself.

Point 39 of the judgment states the defendants must have known the plaintiff was homosexual and/or associated with homosexual people because of his support for gay marriage, the claim he worked for a small volunteer organisation and the stated graphic on the cake including the word ‘QueerSpace’. Certainly there are plenty of heterosexual people that support gay marriage and there is no particular reason for the defendants to have any knowledge of what ‘QueerSpace’ actually is or does. The presumption of the judge was that this service was denied because the plaintiff was homosexual. However, point 7 of the judgment states quite clearly that the plaintiff ‘had previously purchased items at this branch of the 1st Defendant Company’. Were it the case the defendant was denied service because of his homosexuality – which, according to the judge, was ‘abundantly clear’ – it is virtually impossible to account for the previous provision of service.

Point 41 of the judgment quotes a number of cases that make concerning statements regarding the nature of discrimination. One judgment avers ‘discrimination… is something subtle insidious or hidden’ while another states motive and purpose have no basis in judgments on discrimination. point 42 then goes on to argue that the necessary comparator is not a heterosexual person purchasing the same cake but a person of undisclosed sexual orientation purchasing a pro-traditional marriage cake. The comparison is laughable. The very cause of discrimination was not the sexual orientation of the person purchasing the cake, which was not known to the defendants and the judgment offers no great evidence they were aware of such orientation, but the message contained on the cake. Equally, even were the judgment correct on this point, it beggars belief that the previous service to this same individual was then not considered as evidence his sexuality had nothing to do with the refusal of service. As the bakery stated throughout, there have been a number of other cakes that were deemed indecent or offensive that they also refused to bake.

Point 43 acknowledges that the bakery ‘cancelled the order as they oppose same sex marriage’. It is something of a logical leap to then find, as in Point 46, ‘the 2nd and 3rd Defendants have unlawfully discriminated against the Plaintiff on the ground of his sexual orientation’. The prior service of the plaintiff, the provision of cakes bearing no specific political slogans, speaks against this. Moreover, acknowledging that it is indeed the message to which they object in no way implies discrimination against the individual. It, not implicitly, but explicitly implies a refusal to assert political and/or religious slogans and opinions that the service provider themselves do not hold and cannot in good conscience state.

Points 53-60 seek to establish that the Plaintiff held a political opinion and was discriminated against on these grounds. On balance, I suspect the judge is correct in asserting this is a political opinion and is almost certainly correct that the defendants knew the Plaintiff’s political opinion on gay marriage (as per their letter and the specific writing on the cake itself). However, it is patently not the case that the political opinion held by the Plaintiff was the basis of discrimination. The purpose of the legislation is to stop the refusal of a standard service to those who hold specific political opinions. However, it is not the purpose of the legislation to coerce service providers to create material and products that actively promote political beliefs and opinions contrary to those they campaigned against. Again, had the bakery refused to serve the Plaintiff a standard cake simply because he supported gay marriage, this would legitimately fall foul of the law. That they refused to bake a cake bearing a political slogan to which they themselves object and campaigned against ought to be outside the scope of this legislation.

Point 64 of the judgment is, frankly, ludicrous. It states ‘if the Plaintiff had ordered a cake with the words “support marriage” or “support heterosexual marriage” I have no doubt such a cake would have been provided. It is the word gay to which the 2nd and 3rd Defendants took exception’. That is patently not true. It is the campaign in favour of gay marriage to which they took exception. Now, whatever one’s views on gay marriage, it is surely inappropriate to force anybody to produce materials and products which actively promote a position and/or campaign to which they themselves specifically disagree. For example, would it be right for a homosexual baker to produce a cake saying “no to gay marriage” despite campaigning in favour for it? It strikes me that would be just as unfair as the case we are discussing.

The absurdities of this judgment are not hard to discern. For one, the defendants have been found guilty of refusing to bake a cake which supports a position that is currently unlawful. In other words, they have been found guilty of standing up for the existing law of their province. 

It has also been deemed illegal to not provide services and products which directly contravene the views and opinions of the service provider. Now, service providers are compelled to produce products and provide services in favour of campaigns to which they themselves specifically campaigned against.

Further, Asher’s Bakery were found to have discriminated against a legitimate political opinion. Though gay marriage is currently not legal in the province, it is certainly not illegal to hold the view that gay marriage ought to be legalised. Such a judgment, however, means a BNP member who requests a cake from a Jewish baker bearing the slogan “Hitler: the best leader we never had” would be compelled to produce such a product on the grounds that to do otherwise would be to discriminate against a political opinion that is not illegal to hold.

The bakers’ religious views were found to be moot in this case. As such, religious believers will be compelled to offer products and services to those who request blasphemous, religiously offensive or religiously unconscionable products. If an EDL supporter (holding a political view) asked a muslim baker to produce a cake with a picture of Mohammad and the caption “false prophet” underneath (a religious view), would they be compelled to make such a cake on the grounds to do so is to discriminate against political opinion?

There is no doubt that most agree political opinion, sexual orientation and religious beliefs should not be a basis for withholding products and services. Such a position was always intended to stop those who supported one political party, were of one particular sexual orientation or religious belief from refusing to provide services to a person of any other. What they were never intended to do was compel people with deeply held beliefs and convictions to provide services and products specifically advocating and promoting views contrary to their own that would involve the suppression of conscience. It does not take a genius to see a distinction between refusal to serve a gay man because he is gay (evidently wrong) and refusal to provide a product bearing a slogan supporting a position which you have spent some time campaigning against. As far as I can tell, Ashers Bakery were seeking that distinction. Their service of the Plaintiff and their refusal to bake a particular product (rather than serve the man at all) speak to this. One can only hope an appeal judge recognises this too.

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