UKH

For months Northern Ireland has been consumed by the "gay cake" affair, and today we have the court ruling that, yes, the bakery was indeed obliged to provide a service to a gay person.

NI has been discussing little else for months, and yet, not a peep on UKC. Are we that un-interested in NI nowadays?

It comes to something when I find myself forced to agree with the likes of Martin McGuinness on an issue, while the DUP really have shown themselves to be medieval-minded religious crackpots.

In reply to Coel Hellier:

DUP really have shown themselves to be medieval-minded religious crackpots.

Unfortunately this is not really news

In reply to Coel Hellier:

Agree there's not been much discussion on it, cos I think it raises an interesting issue.

The bakers were asked to include a slogan on the cake that they disagreed with. To me that's different to refusing to make a cake for a gay wedding (which is unacceptable). I don't like the idea that people should be forced to say, print, paint or decorate something that they feel is contrary to their religion*

*Not that it is contrary to Christianity, in fact it is their bigotry which is contrary to Christianity, but that's what their church tells them.

In reply to Chris the Tall:


By all custom, a business providing a service like this is not taken to be giving assent to the messages. For example, a printer might tender for both Tory and Labour election leaflets. I think it would be a bad idea to abandon that principle.

Also, why do you make an allowance if it is "... contrary to their religion", but not if it is contrary to their beliefs more generally?

In reply to 3 Names:

And the Government will be relying on the DUP votes at some point with their slim majority, so no one will intervene there.

In reply to Coel Hellier:

Would a printer be taken to court if they refused to print BNP election leaflets ?

In reply to Chris the Tall:


"Political opinion" is not a protected characteristic under equality legislation in the way that sexuality is. So, no, likely they wouldn't.

But, if we do support equality legislation requiring businesses to treat gay people equally, then we should mean it. If you don't think Christians should be held to that then it really means you don't support the equality legislation in the first place.

In reply to Coel Hellier:
My friend has a printing business, and gets offers to tender for jobs that he turns down. He does not give a reason.

Usually he is just too busy, but does not say that.

However, I would imagine if he was asked to print say a BNP or PIE leaflet he would not want to do it, but would just regret it in the same way as if he was too busy.

In reply to Coel Hellier:

Speaking as a gay, I have to admit to feeling a bit sorry for the bakers.

They don't want to support a campaign they don't agree with. Seems fair enough to me. If they were baking dozens of homophobic cakes and refusing to serve gays in their shop, that would be a problem, but this is a long way from that. Forcing them do do something they don't agree with doesn't seem a very nice thing to do.

I'd be pretty aggrieved if I was forced to bake a UKIP cake, or an anti-abortion cake, or a birthday cake for Katie Hopkins.

In reply to Chris the Tall:


It's just as well that nobody forced them into a particular business where the law disagrees with their personal prejudice then.

If I choose to go in to business, I choose to follow the law or suffer the consequences.

In reply to Coel Hellier:

They refused to make a cake that had a pro gay marriage slogan on it. Isn't that political opinion?

In reply to Richard Alderton:

If they had said sorry we're busy would that dishonest answer have avoided the issue? Possibly.

If they had said sorry we don't do that design it might not have been harder to argue against them. They are a business and don't do that service.

But keep in mind they initially agreed to do the cake. Then later changed their mind and said "no, sorry we can't because of our beliefs". That's a breach of contract along with a slap in the face to the customer based on their sexuality. Hence the verdict.

In reply to Coel Hellier:


Is that like UKIP? Accused of being racist, xenophobic, prehistoric dinosaurs. Enough to become the third biggest voting group. Not a good idea to show disrespect to voters from a pseudo-intellectual standpoint.

In reply to Coel Hellier:

I have been discussing little else than NI for months, but nothing to do with cakes and slogans.

And yes, from my point of view, they are a foreign country, with their own ways of doing things.

In reply to Removed User:

184,000 people (DUP voters at last election) can easily be medieval-minded religious crackpots. There was around 4 million of them (mediaval-minded religious crackpots not DUP voters!) in 14th century Britain.

In reply to tistimetogo:


If they were diplomats, maybe that's the route they would have chosen!

In reply to mountainbagger:

I dream of the day NI isn't ruled by a group of christian fundamentalists who see fit to inflict their beliefs on the country.
They blocked the marriage equality law from passing in Stormont.
If half of them were English politicians they would have been crucified for some of the things they come out with. With sectarian voting though we're somewhat stuck with it for a few more generations at least.

In reply to tistimetogo:




Exactly.

In reply to Richard Alderton:




The bakery wasn't forced to do anything, though, the cake got made by another bakery in the end.

In reply to Timmd:


Well no, but the only way to avoid legal action would have been to bake the cake.

In reply to wintertree:



For a start the law has changed considerably since they chose to go into baking, and secondly it's baking FFS, not an area where one usually expects to encounter much in the way of politics (even in NI)

More importantly it's an issue of balancing up one persons rights against those of another. Freedom of speech, freedom of belief, freedom from discrimination...does the law saw which should take precedence ?

Had the bakers refused to bake a wedding cake with the words "Congratulations Adam and Steve" then it would have been a different matter. But asking them to prepare a cake with a political slogan seems deliberately antagonistic. Were they picked because of previous incidents ? Or just because they were known to be members of the church ?

I'm all for taking on the church's bigotry on this issue, but this doesn't seem the right way to do it.

In reply to Chris the Tall:


Neither. They were picked because they were advertising a service of supplying customised cakes.

If you're a business providing a service then you should adopt a "customer is always right" attitude and provide that service. The business is not "speaking" the message on the cake, any more than a printer necessarily agrees with what it is printing.

And, yes, I think that a printer offering a public service should print UKIP leaflets if asked to. (If they're genuinely turning away business because they're busy then fine, but not because it is UKIP or because it is a black person asking).


The law says that "freedom of speech" does not apply to a business offering a public service. Non-discrimination statues do apply.

In reply to Coel Hellier:


There is a distinction though between this and the B&B owners who were told they couldn't refuse gay customers isn't there? Presumably, the bakers would have refused to put this message on a cake for a straight couple who supported gay rights too, so in that sense they treating everyone equally.

In reply to Coel Hellier:


Are you sure about that?

Given that Gareth Lee is a gay rights activist, and looking at the words of his lawyer, I had automatically assumed it was a deliberately targeted attack on that specific bakery in order to pick a fight.

I could be wrong, of course.

In reply to Coel Hellier:


Aah - that explains it better. Hadn't seen that reported anywhere. I was under the impression they were a small family bakery who would make wedding and birthday cakes etc as requested. As such you wouldn't expect political slogans on them.

In reply to Richard Alderton:


The court ruling states, in its summary of facts:

"[6] The Plaintiff was planning to attend a private event ..."

"[7] The Plaintiff decided to purchase a cake for the event. He had previously purchased items at this branch of the 1st Defendant Company and had become aware from a leaflet that he could have a cake iced with a graphic of his own design".

I don't see any suggestion that he was looking for a fight, or had picked out this bakery for any other reason than it was local and he had been a previous customer.

In reply to MG:


You could only really take them at their word on that although it does seem likely.

I suspect there may be a rash of these incidents happening south of the border right now with their upcoming referendum, there'll be a lot of straight and gay folk getting pro and anti gay rights material printed on tee-shirts, signs, flyers and probably a few cakes too.

jk

In reply to Coel Hellier:


There's all kinds of occasions where personal morality and ethics should stop you providing a service to particular groups. Suppose you had strong views on Israel, in the absence of UK trade sanctions as a business owner should you be allowed to refuse to do business with an Israeli company? Suppose you manufactured cattle-prods and the Saudi Police phoned up and asked for a few thousand? Suppose you were an artist with republican sympathies, and you were asked to draw a mural for the UDA? Suppose you were a gay US army veteran running a print shop, and got an order for signs from the Westboro Baptist Church?

'I'm not serving you because you are gay' is different from 'I'm not baking that cake because I don't want to help promote that political cause'.

In reply to Richard Alderton:

Also from the ruling:

"When the Defendant gave the Plaintiff a leaflet stating the sizes and prices of cakes, she recalled him tell her that ... he wanted a cake with his own logo for an event. It was explained that if he brought the logo to the shop it would be scanned and put into the cake".

Thus the bakers only had to put the logo through a scanner and then use an inkjet to put the logo on the cake.

"[The defendant] accepted that there is no limitation to the graphics in the company leaflet"

In reply to tom_in_edinburgh:


Non-UK people are not covered by equality legislation.


If you think that "personal morality and ethics" overrules equality legislation then you're effectively saying that you don't support equality legislation and should allow people to discriminate based on their personal preferences.

In reply to Chris the Tall:


So? The law has changed significantly since many people chose to go into the pub business. What do you think would happen if a landlord declared they could and would flout new laws prohibiting smoking in a business premises?

In reply to Richard Alderton:


That's a good point, my brain was in neutral.

In reply to Coel Hellier:

What's wrong with disagreeing with some aspects of a particular law? It is pretty much the normal condition.

Here is another question. The cake has Bert and Ernie on it which are cartoon characters owned by the company that make Sesame Street. When the gay marriage movement started to adopt them the company made a statement that Bert and Ernie were childlike characters with no sexuality and should not be viewed as a gay couple. So it seems clear that they would be unlikely to give permission for their characters to be used to promote gay marriage. So does equalities law trump the intellectual property rights in the cartoon characters or can their creator control how they are used?

In reply to MG:

I'm not sure if I agree. If a local GLTB group wanted a themed cake, and the local WI did, then it'd be the GLTB group who'd end up not getting their cake, whether it's a straight person who asks or a lesbian or gay person, they're still not treating all segments of society equally. Clearly so.

In reply to tom_in_edinburgh:


There is nothing wrong with disagreeing with a particular law. But you are going to have to suck it up whenever you get arrested for expressing your disagreement by breaking the law you disagree with.

In reply to Chris the Tall:


No, arseholes aren't a protected group.

In reply to tom_in_edinburgh:

If they choose to license Burt and Ernie wedding cakes (why would they except for the gay market) they can't then say they can't be used for gay weddings.

In reply to Timmd:

No they would be discriminating on theme, not on whether someone was gay (BTW are no WI members gay?). If both groups asked for "Happy Birthday!!", and only the WI got it, then I can see there is no doubt the discrimination was towards gays (and similar).

The judge doesn't see it this way though either, it would appear.

In reply to MG:

Of course WI members can be gay or bi etc...


That's because (where applicable) themes aren't abstract, and represent groups within society, hence the ruling of the judge.

In reply to The New NickB:


My guess is that in this case the characters are being used without permission.

From what I've heard when you ask to use a character like Mickey Mouse in advertising there is a huge list of rules about how it can be used because the character is a key piece of intellectual property and reflects on the brand. I'd imagine the large media companies might well have a problem with a character being used to promote a political message.

In reply to tom_in_edinburgh:


But since it was only for a private party, it would be covered under "fair use" provisions of copyright law, and thus would not need permission.

In reply to Coel Hellier:


I wonder how much the judgement depends on the fact that the bakery was creating the design on the cake automatically from a scan supplied by the customer, which might let them dodge intellectual property licensing and fees that would apply if they as a commercial organisation were creating artwork using licensed characters themselves, but gives them less scope to make other arguments.

In reply to Timmd:

OK, you seemed to be assuming otherwise


No, that wasn't the thinking, if you read the judgement.

“My finding is that the defendants cancelled this order as they oppose same sex marriage for the reason that they regard it as sinful and contrary to the genuinely held religious beliefs"

In reply to MG:



This and what I posted aren't contradictory...I wouldn't have thought?

In reply to Timmd:

You seemed to be saying that some themes are the...essence of that protected characteristic so much that they are that characteristic, and so protection of that theme is part of protection of members of the group? Is being a supporter of gay marriage part of the essence of gayness?

Coel:


The printer is generally well within his rights to refuse to print UKIP leaflets though, unless he's refusing because the person asking is black or gay. I can't see how being a supporter of gay marriage is akin to being black or being gay. Do you have a link to the judgment?

This, "My finding is that the defendants cancelled this order as they oppose same sex marriage..." seems to say the decision wasn't made because the applicants were gay, it was because the judge thought the shop could not discriminate based on their opposition to a political opinion. That's not supposed to be the law, and would make this very much a political decision.

In reply to thomasadixon:

I'm just saying it's (an aspect of) discrimination to refuse to make a gay pride style cake, or gay marriage, or whatever, and not refuse to make other cakes.

It's probably somewhere down on the scale of importance compared to access to employment and that kind of thing, but it still matters. It still made the gay person who asked about it feel like cr*p.

In reply to Timmd:


But political discrimination (which is thankfully allowed) not sexual discrimination. The judge inferred that the bakers were in fact discriminating sexually from this (see the judgement), which is quite a leap

In reply to Coel Hellier:


Someone (I think from the Equality Commission) on R4 the other day admitted that had the bakery had a disclaimer saying they reserved the right to refuse designs of a political or religious nature, there would have been no case, as long as there wasn't any evidence they were only refusing orders from one particular political or religious position.

So, in answer to Chris the Tall's question about the BNP, I think refusing to decorate a cake for them, as a lawful political party, might well have been an offence, in the absence of a disclaimer.

In reply to Coel Hellier:


I have to say I agree with you about this. It seems ironic to me that in a province where a large proportion of the population seems obsessed by 'loyalism', this same part of the population is so determined to maintain the sort of society that largely died out in the 1960s in rest of the UK. I really don't understand why we tolerate NI having a different law on abortion, for instance.

In reply to Dave Garnett:


What offence, given that political orientation isn't protected under the equality act?

In reply to MG:

Hmmm, you have a point. I was going from the comment about the disclaimer, which I'm pretty sure mentioned both political and religious grounds. I suspect contract law has something to do with it too but this isn't my area so I'll back way... !

In reply to MG:

Appears there's ni specific law and so you can't discriminate there on political grounds...

In reply to thomasadixon:
Ah!

Is it clear in that case which bit of the law the bakers were deemed to have broken? I would have thought the political aspect would be a much clearer breach.

In reply to Coel Hellier:

Despite being an atheist and pro gay marriage I would tend to agree that the law seems to have been misapplied. From what we can see this man was not discriminated against because he was gay, in fact *he* wasn't discriminated against at all, only his message was. To be honest, this law seems difficult enough to make any sense of even before this seemingly contradictory ruling.

Presumably if he had gone in for a plain cake and been refused service because he was gay, that would be illegal (we already know that this hadn't happened on his previous visits).

I assume that a straight, white, NI person buying a pro gay marriage cake could be legitimately refused as they are not protected.

What about, say a muslim buying a pro gay marriage cake. Could they be refused? They are a minority with a pro-minority message but not the same minority.

Further, presumably a muslim buying a 'kill the infidels' cake with a picture of a beheading would be defended by law (imagine what the tabloids would do to the business when they got wind of that), but a non-muslim buying the same cake could be refused?


To those espousing the 'customer is always right, business should do whatever it is paid to do' point of view, I'd ask you to take a moment to consider the type of society you want. Yes perhaps it would be better to leave behind the irrational, bigoted, regressive beliefs of religious society, but do you really want a society where it is illegal to refuse to do something if you're paid for it? If you ran a hardware shop and a guy came in checking out chains and brackets and when you asked if there was anything you could help him with he pulled out some photos of people being tortured to death and said "it has become very difficult for me to get the equipment I need in my country". Would you tell him to f*ck off? Or would you take his money because the customer is always right and supplying torture equipment doesn't mean your business supports torture?

In reply to MG:


What's political about being against gay marriage?

In reply to Timmd:

Quite a lot. If you had read the news recently you would know that it has been heavily debated in the UK and other parliaments. It's a view on how society should be structured. Some people agree with it, some don't. There are arguments for and against. That's politics.

Of course being allowed to discriminate against gays is also political in a way, but the political process has run its course there for now and it is not allowed.

In reply to Oujmik:


Yes, if you're running a public-service business and the service you're being requested to provide is legal. That's the whole point of the legislation.

Your example of supplying torture equipment is different because that is legally banned:
https://www.gov.uk/controls-on-torture-goods

In reply to Coel Hellier:

I'm not sure that's what the legislation says or intends. But if goes beyond some defined characteristics you are not allowed to discriminate on the basis of to a general rule that you always have to provide service to every potential customer is it has gone *way* too far. Maybe there's an argument for large, quasi-monopoly businesses where someone would have difficulty finding another supplier but there are hundreds of good reasons why a small business might decide not to deal with a particular customer ranging from ethics to personal safety to economics to convenience.

For lots of people the whole point of setting up their own small business is to be in control of their work so they can work on things they enjoy and reduce stress over being in a larger organisation with a boss telling them what to do. Market forces provide plenty of incentive to take all the work that is offered and diversity and character are one of the reasons for dealing with micro-businesses rather than bland chains.

In reply to Coel Hellier:



No, the point of it is that you cannot, as a business, pick and choose based on certain, defined criteria, not that you can't choose at all. See Tom's post.

In reply to Coel Hellier:





Is cake decoration or hardware a public service? OK, pick a different example of something you find suitably abhorrent which is not illegal.

In this new ultra-capitalist business environment, how do you limit what you do? I mean what if I come into your hardware shop and I want to buy your dog, can you refuse? Just because your shop normally only sells hardware is that an excuse? If so, what if your cake shop only sold non-gay cakes?

This is a slightly bizarre role/argument reversal. I'm arguing for the autonomy and light regulation of businesses as an alternative to ultra-capitalism and you are citing public service as a reason to put a price on everything.

In reply to Oujmik:
The judge said it is a business and not a religious organisation (eg Church of the Non-Gay Cake) so they can't discriminate.

Protection against discrimination on religious grounds works both (or many) ways.

Allowing religious descrimination means the shop can reject the gay cake order and would allow somebody with different or no religious beliefs to refuse employment to somebody with the same religious views as the bakery shop owners.

In reply to elsewhere:


But they didn't discriminate against the individual, they discriminated against the specific cake. My point is that the law as I understand it protects individuals from discrimination, not cakes. If they would have made that cake for a straight person, then yes that's discrimination against the person on the basis of sexuality (and thus illegal), but it seems clear that they would not have made that cake for anyone (except perhaps God himself or maybe jesus or a major saint, or possibly a bishop...) so how can that be discriminatory?

In reply to Oujmik:
>but it seems clear that they would not have made that cake for anyone (except perhaps God himself or maybe jesus or a major saint, or possibly a bishop...) so how can that be discriminatory?

Good grief. I give up. See if you can guess.

In reply to the OP; I imagine the reason no-one's discussed it is that we've had dozens of similar cases here and the law is well settled.

In reply to someone else: no, it's not significant that they initially agreed to bake it. Refusing to bake cakes because they offend your anti-homosexual feelings is illegal, rightly or wrongly (assuming you're holding yourself as running a cake-baking business, that is). Whether you agreed to do it first before refusing isn't relevant.

jcm

In reply to Oujmik:


Of course! <rolls eyes>


Now come up with a sensible interpretation of what I've said.

In reply to elsewhere:

Could one insist that a similar Muslim owned cake shop print a picture of the prophet on the cake?

In reply to Coel Hellier:

Oh, to the OP- yes, NI is very much a foreign country from my perspective, I have to admit.

In reply to Siward:
That is a very good question to which my answer (yes) is very poor.

In reply to johncoxmysteriously:

Sorry to exasperate you, but this is a matter of law, which is supposed to be at least relatively well defined (with some significant leeway given that we have a system of law by precedent).

If the man requesting the cake had been straight, would he have been able to bring (and win) the case? If the answer is yes then I have simply misunderstood the law and it extends much further than I realised meaning any kind of anti-gay sentiment, action or inaction is illegal (unless in church or religious context). I thought it was just illegal to discriminate against individuals based on their sexuality.

In reply to Siward:


Sure.

As long as you don't mind some lunatic shooting you, obviously. I think that's roughly how sharia law deals with this issue.

jcm

In reply to Siward:

Presumably not unless there is a protected minority to whom drawing the prophet is culturally important.

However, if there hypothetically was such a minority then I'm not sure what would happen.

In reply to Oujmik:

As long as it was shown that the refusal to bake it was based on the straight person's sexuality and they would have baked one for a homosexual person, then in theory, yes he could have brought a case.


I do understand your point, that it's the gay-cake service they're refusing to supply rather than refusing to supply homosexual people. However, the law in this area looks a little more to the reality, which is that if this is allowed then homosexual people find it more difficult to get cakes baked for their weddings.

jcm

In reply to Oujmik:


I don't think that's actually the test. But anyway, in practice the answer is that such a claim would fail because the courts have more sense than one might think.

jcm

In reply to Coel Hellier:


Ok, I was being flippant but there was a serious point there. Given that you said earlier...

"> ... but do you really want a society where it is illegal to refuse to do something if you're paid for it?

Yes, if you're running a public-service business and the service you're being requested to provide is legal. That's the whole point of the legislation. "

...I was trying to test the limits of the 'public service' obligations of a business. I'm not sure how it could possibly work. For business to be viable it must be allowable to refuse a request when it is not economically or technically feasible. This alone is not exactly black and white as where would you draw the line? It is also quite common for a big business to refuse work that is not in line with its business plan or contradicts internal policy or brand guidelines. I assume you would agree with this for big business, so why not allow small businesses to have their own reasons to refuse work? In this case, it seems that the specific reason was illegal, but you seem to be suggesting that *all* reasons to refuse work should be illegal as it is the public duty of businesses to provide services for money.

Unless I lay out everything I do as a business explicitly and up front with fixed prices (like a hardware shop), then how could I ever refuse work



I think that was a reasonable summary, albeit perhaps not very eloquent. I found it interesting that public service (typically an idea not really associated with purist capitalist idealogy) could be cited in (what appeared to be) an argument that businesses should be obliged to operate in a purely commoditised market with no discretion over what services they provide to whom.

At the same time, I found it interesting that in opposing this (perceived) view, I found myself supporting the idea of deregulation of- /removal of state interference in- business, something which is far more common amongst free-marketeers.

Hope that makes a little more sense. I think perhaps we were at crossed purposes on the public service thing as I think perhaps you were thinking mainly in terms of the gay cake and I was thinking of a complete societal change.

In reply to johncoxmysteriously:



What's interesting (genuinely, not being flippant) is the contradiction between your first and second paragraphs. In the first paragraph you apply the letter of the law (I think) In that the straight person would have needed to demonstrate discrimination based on their being straight. However, given the 'practical' nature of the law you mention in the second paragraph it seems that the straight person would not need to demonstrate this.

Of course, I understand absolutely what you say about getting cakes for gay weddings and the fact that effectively makes life harder for gay people, it just seems a little flakey to stand up to legal scrutiny.

In reply to MG:
http://www.courtsni.gov.uk/en-GB/Judicial%20Decisions/PublishedByYear/Documents/2015/[2015]%20NICty%202/j_j_2015NICty2Final.htm

Both. The NI Act which includes discrimination based on political opinion is very clearly breached, but wouldn't apply here.

The judge found breach on sexual orientation too, saying this, "Same sex marriage is inextricably linked to sexual relations between same sex couples", which I find extraordinary. Seems it is part of gayness and it's not a political discussion at all.

JCM:


Mind naming some? The case they follow is the B&B case, saying that it's the same because of the reason above. There's no law equivalent to the NI Act (including political opinion) that applies here that I can see.


Of course that's not at all what they said, they said it was because of the political slogan, but you understand that I imagine.

In reply to Richard Alderton:
" or a birthday cake for Katie Hopkins."

Would love to - what is the name of that ultraeffective laxative? Picolax or something. Must have ingredient.