'Gay cake' row: Judge rules against Ashers bakery

I discussed this earlier. NI has special provision about political beliefs - The Fair Employment and Treatment (Northern Ireland) Order 1998. I don't think the rest of Britain does, although the Equality Act (2010) does have Religion and Belief as a protected characteristic, including lack of belief. I don't think that is specifically about political beliefs though.

Yeah the good counterexample I was referring to was the atheism one.

I don't have time at the moment to look into the case law (or read this judgment, to be honest -- given I have law exams at the moment I can't really justify time spent reading irrelevant cases), but this decision seems to me a massive stretch on the language of the Act. It would seem to imply that 'normal' service of cakes to people of x characteristic involves making cakes promoting causes related to x characteristic. I think that is basically unrealistic. So there's the definition of 'normal service', and there's the (related) question of whether we can find 'discrimination' at all in a case where the treatment is not necessarily linked to the characteristic of the purchaser. This cake could easily be bought by a straight person. Straight gay activists exist. Even if they didn't in fact, they could in theory, which is enough to demonstrate that the treatment isn't necessarily linked to the protected characteristic of the buyer.

Now, if I'm wrong here, and this decision is right, then if, as you say, non-religion is a protected characteristic, it should be perfectly open to me as an atheist to go to a quaint little cake shop run by a couple of elderly Christians and demand that they make a 'GOD IS AN ABSURD FAIRYTALE' cake. This seems to me more than a little oppressive. It's already sad how some people are forcing their custom on harmless small business owners in the name of standing up for 'equality'. This takes it way too far.

i agree entirely. these bullies have selected a very soft target for their nasty attack.

I'm no lawyer, but isn't Section 5 the relevant one and particularly 5.1(b), "as are normal" and 5.3(e) "for refreshment"?

I suppose there is a point here which is that it stretches the legislation to demand that a "pro-gay marriage message" is by the definition of the legislation "normal". If that's what the issue was. It may be that the bakery have somehow indicated that they objected to the depiction of the figures on the cake too.

Presumably that will be tested on appeal now?

Perhaps we can hope that this case, manifestly nuts as it is, is the one to generate something of a backlash.

There are a number of relevant sections, but 5 was probably the core one.

Key parts of the judgment:

"I prefer the Plaintiff's submission that same-sex marriage is or should be regarded as a union between persons having a sexual orientation and if a person refused to provide a service on that ground then they were discriminating on grounds of sexual orientation" (p.11)

"I do not accept the Defendants' submissions that what the Plaintiff wanted them to do would require them to promote and support gay marriage which is contrary to their deeply held religious beliefs [...] They are in a business supplying services to all, however constituted." (p.12)

Rejecting the argument numerous people on this thread have been making (myself included): "The Defendants submit that they would have supplied the cake to the Plaintiff without the message 'support gay marriage' and would also have refused an order from a heterosexual customer whose order included the same graphics. I do not consider that this is the correct comparator for the reason that it oversimplifies the enquiry. [Quoting previous cases:] 'In deciding what were the grounds for discrimination it is necessary to address simply the factual criteria that determined the decision made by the discriminator'...'The discriminator may consciously or unconsciously be making his selection on the basis of race or sex. He may not realize he is doing so, but that is in fact what he is doing'..." (pp.13-14)

"What is required is proof of a factual matrix of less favourable treatment on the grounds of sexual orientation and not the motive. I regard the criterion to be "support for same-sex marriage" which is indissociable from sexual orientation." (p.15)

Based on the prior case law, the judge considered that the correct comparator was not a straight person ordering the gay cake, or a gay person ordering a straight cake. It was a straight person ordering a cake promoting straight marriage. I don't really understand the point of that comparison, because it seems to undermine the whole purpose of getting to the bottom of why the decision was made. I suppose, though, that she made this point to support her narrative that supporting gay marriage and being gay are indistinguishable for the relevant purposes.

Personally, I think that the judge obfuscated the issues throughout her judgment, illustrated chiefly by her fudgy equation between supporting gay marriage and being gay. In fact, she fudged things with such consistency that I do wonder whether it was deliberate. As you say, I would be surprised if this decision were not appealed - it's only a county court decision - though it is in the Defendants' hands whether or not to do so.

"I regard the criterion to be "support for same-sex marriage" which is indissociable from sexual orientation." (p.15)

It was a straight person ordering a cake promoting straight marriage.

I mean. I'm not a lawyer, but it seems fairly plain to me that the outcome of this case is wrong. Fundamentally because as you say there is nothing in this case that suggests that there was discrimination against a protected characteristic. Now of course the burden of proof is lower in civil cases but there seem to be a number of possible reasons for discrimination here and it doesn't seem to be possible to prove which one it is.

It's possible that they were in fact discriminating against the customer, making an assumption about their sexuality. It's possible that they were just discriminating against the message, where any customer would have been refused irrespective of sexuality. There are possibly other reasons they didn't make this cake, but you can't prove which one it is. And assuming it was down to sexual orientation seems to me to be an absolutely baseless leap.

Why should a baker who's job it is to bake things refuse to bake a cake?

It's not even that. The judge seems to me to be saying that, even if the customer had been straight, this would still have been discrimination.

The key thing here is the phrase "on the grounds of sexual orientation". What the judge seems to be saying is that if you refuse to print a pro-gay message on a cake, you are discriminating against gay people. It doesn't matter that the actual person you're serving isn't gay - you are discriminating against him (whoever he is) on the grounds of sexual orientation (i.e. on the grounds that you disagree with a pro-gay message).

I think that the above is a very strained interpretation of the law. I also think it requires a leap in logic - namely that disagreeing with gay marriage is inherently homophobic.

I have to qualify this by saying that this is only my (hurried) reading of the judgment - I actually find it quite difficult to make head or tail of the judge's reasoning.

And of course a factor that seems to have gone under the radar is that same-sex marriage is not legal in NI (although this will no doubt change very soon).

So the judgement seems to require people to support something not yet recognized in law!

How about a bestiality cake Judge Brownlie? Sheep need love too.

So you think they should be forced to serve a murder or rapist then?

Discrimination is unacceptable regardless of who is doing it.

Just wondering something about the people supporting the bakers and their supposed "right" to discriminate because of their "religious freedom".

Would you be saying the same if it was a Muslim baker refusing to make a cake for a Christian wedding? Or a gay wedding? Would you be defending this hypothetical Muslim baker then? Because somehow I doubt it.

I suspect a lot of the people currently defending the Christian baker would change their tune very quickly if that were to happen, given the sort of people they often tend to be. They'd be calling for the baker's head on a stick and using the case in order to attack Islam (which would probably be justifiable, but a bit hypocritical).

Discrimination is unacceptable regardless of who is doing it.

When people compare bestiality or anything of that sort to homosexuality, their argument instantly loses all credit. Apologies.

are you seriously comparing a murder or a rapist to someone who loves differently to you?