Can a cake even BE gay?

UPDATE: 24 October 2016

Today the Court of Appeal in Northern Ireland upheld the county court decision I discuss below. You can read the full decision here if you are keen. On a brief scan through, I think I pretty much stand by the arguments I make here and that the decision is wrong. I’ll write a more substantive post when I’ve given it some proper thought!

It has become universally known as the ‘gay cake’ case. But of course, it is not the sexual orientation of the cake that is what matters here. Or is it?

I’ve written before about the Northern Ireland case of Ashers, the bakers  who refused to bake a cake advocating support for gay marriage.  But that was before we had this judgment from the Northern Ireland County court. Having read the decision I am even more convinced that what Ashers did was not discrimination on the grounds of sexual orientation.

(In this post I am only going to look at the sexual orientation issue, but it’s worth noting that the case was also upheld on as discrimination based on political opinion. In Northern Ireland there is a much wider law protecting political belief than we have in the rest of the UK but I don’t think I’m sufficiently familiar with the case law to comment.)

Cards on the table first. As I wrote back in November, I support equal marriage rights – and I’m not religious. I believe strongly that businesses should not discriminate on the grounds of sexual orientation irrespective of what their religious convictions tell them. So when I say that I don’t think that Ashers Bakery did discriminate on the grounds of sexual orientation, that does not come out of any sympathy with their world view.

Basically, I just don’t think that sexual orientation is the same thing as support for gay marriage. The judge in the case disagrees. Here is what she said:

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 that if a person refused to provide a service on that ground then they were discriminating on grounds of sexual orientation. (para 36)

That reasoning was based on the Supreme Court decision in Bull which was concerned with a hotel refusing to give a room to a same-sex couple. Of course you can’t separate the fact that someone is gay from the fact that they are in a same-sex relationship. But that is not the same as regarding support for equal marriage as being inseparable from sexual orientation.

The bakery argued that it was the cake that they objected to, not the customer. Had any other customer, irrespective of sexual orientation, ordered the same cake they would have been treated in exactly the same way. In rejecting that argument the court said:

the correct comparator is a heterosexual person placing an order for a cake with the graphics either ‘Support Marriage’ or Support Heterosexual Marriage’  (para 42)

That makes no sense to me. Why would you change the nature of the cake when considering the comparator? That would only make sense if it was absurd to suggest that anyone who was not gay would ask for a cake supporting gay marriage. This does seem to be the Judge’s view, however. The judge actually says in the same paragraph that support for same sex marriage is ‘indissociable from sexual orientation’.

But lots of people who are not gay support equal marriage – millions of them! They may not often order cakes expressing that view, but there is nothing inherently implausible or absurd in them doing so. Entering into a same sex marriage or having a same sex partner might be indissociable from your sexual orientation, but supporting a policy of legalising gay marriage is nothing of the sort.

Perhaps I’m missing a more subtle argument here.  Robin Allen QC for the Plaintiff had stressed that discrimination had to be ‘on the grounds of sexual orientation’, but did not have to be on the grounds of the sexual orientation of the customer. This is a well established principle. If I discriminate against you because I discover that you have gay friends, then that will be discrimination even if it is not your sexual orientation that I have a problem with.  But perhaps Robin Allen was seeking to take this further. The Judge summarises his main point as:

‘The defendants refused to make the cake because they took exception to gay sexual orientation as being sinful’

Could the argument be that discrimination is made out if the refusal to bake the cake was on the grounds not of the sexual orientation of a person, but on the grounds of sexual orientation in the abstract? It is certainly the bakers’ views on sexual orientation that have led them to refuse the order – just not the sexual orientation of the customer, or any other individual. If this was the argument I’m not sure the Judge accepted it – but I can at least see that your views on gay marriage are inseparable from your views about sexual orientation.

But I think equality law was meant to protect people not ideas. The logic of the argument would be that anyone who asked for a cake supporting gay marriage would be able to claim discrimination if refused because the refusal would be on the grounds of sexual orientation. It seems to me that this is not what discrimination law is for. It should not be used to  make people participate  – however tangentially – in a political campaign that they strongly oppose.

This is a big issue in America where the protection of free speech is treated very seriously. The argument is ongoing but it appears, for example, that printers can refuse to produce material supporting positions that they oppose because the right to speak freely includes the right not to speak at all. Frankly I have a lot of sympathy with that.

In the Asher’s case however, an argument based on the right of freedom of expression under Article 10 of the European Convention was given short shrift. Article 10 was not engaged because the bakers were only required to produce a cake, not endorse a position on gay marriage. Even if they were, the restriction on their freedom of speech was legitimate, because it was necessary in a democratic society to protect the rights and freedoms of others.  Personally, I am uncomfortable with the right to free speech being dismissed quite so lightly.  The Judge may have felt that producing the cake did not involve supporting gay marriage, but I don’t think judges should be telling citizens what should or should not burden their conscience.

Incidentally, here is a case from Colorado where a baker refused to bake a cake with an anti-gay message (a quote from the Bible no less) and it was argued that that amounted to religious discrimination against the customer. The case was thrown out but I wonder what view the Equality Commission for Northern Ireland would take? Would a bakery run by a gay couple be required to bake cakes with a quote from Leviticus?

It is bizarre that baked goods seem set to become a battleground between freedom of speech and the cause of gay equality.  I think it should be possible to support both. Businesses should treat all customers equally regardless of their sexual orientation, but I don’t think that should require people to produce material for a campaign that they do not support.