Specific or Generic Cake

There has been much commentary on the Gareth Lee v Ashers Bakery law case, some links are provided on the TA website to which may be added Martin Salter's reflections on cake, conscience and commerce. Not having read all of these but a number, I am still not persuaded by the first part of the judgement claiming that the customer was (indirectly) discriminated against on the grounds of sexual orientation. Evidence for (direct) discrimination on the grounds of political belief, as argued in the second part, seems to me much stronger.

One point of the controversy deserves maybe more attention that it has received. It is the question what sort of product this cake is. The managers of the bakery considered it a vehicle for a political slogan with which they would be implicated by making the cake. That the cake expresses a political conviction can be granted but the Judge rightly observed that no consideration seems to have been given to alternatives which could have created the necessary distance between the bakery and the political conviction. While not mentioned in the judgement, use of neutral packaging might have been sufficient to prevent any association of the bakery with this political view.

The Judge seemed more inclined to consider the product just a cake, one in the generic category "cake with graphics and writing on it". To deny such a cake to one customer but not another is unlawful discrimination. This makes sense to me. If baguettes are sold to some customers but not to others we have a problem.

So the question really is whether one cake with writing on it is just like any other generic cake or whether a cake with the slogan "support equal marriage" on it is a specific cake, one which had never been sold before to any customer and which the bakery does not wish to make for Gareth Lee or indeed for any other customer under the sun. I do not think the answer to this question is obvious; I am surprised that apparently it has not been explored explicilty.

The situation would be similar, if a bakery offered "wedding cakes" with a groom and a bride figure on the top of the cake, saying this is our "wedding cake" - take it or leave it (or, if you are a gay couple hitching up, club together with a lesbian couple, buy two cakes and change the figures.)

A related question may be weather a bakery would be free to provide "baptism cakes" but not "bar mitzvah cakes" or "bar mitzvah cakes" but not "bat mitzvah cakes", or whether a bakery that offered Ramadan-themed cakes would be obliged to provide "baptism cakes" as well.

It is a fine line between the freedom of a baker to offer the products they like and the right of customers to buy whatever another customer has the right to buy and the line goes through the specifci/generic distinction, as far as I can see.

If Gareth Lee had come into the shop, saying I'd like this cake over there for an anti-homophobia event with my gay friends at QueerSpace and if he had been unable to purchase a cake, it would have been a clear case of illegal discrimination. The fact that a cake with a particular design had to be specifically produced prompts the question here.

Discrimination without Motive

The full transcript of the County Court judgement in the case Gareth Lee v Ashers Bakery illuminates an aspect of the Judge's reasoning which had eluded me when I reflected on the summary statement in my previous post.

The defendants argued that they did not discriminate against Gareth Lee because of his sexual orientation or political beliefs by pointing out that

• regardless of his sexual orientation or political beliefs they would have served Gareth Lee if he had ordered the cake without the message
• they would have refused to fulfill the order for a "Support Gay Marriage" cake, even if the order had been made by "a heterosexual customer".

The Judge did not consdier these fair comparisons "for the reason that it oversimplifies the enquiry" in that it does not take sufficiently into account that discrimination "may be subtle, insidiuous or hidden," even to the discriminator.

Asking for the grounds, the why of discrimination is ambiguous. The question may be about "what caused the treatment in question" or about what was "its motive and purpose." Citing an earlier case, the Judge observes that "the former is important, the latter is not." 

In other words, the question is not whether the bakers were and are happy to serve people of a particular "sexual orientation" or people holding particular political beliefs - we may grant that they are entirely happy to do so - but whether people like Gareth Lee are given unfavourable treatment. 

The comparison must therefore be between a heterosexual customer ordering a "Support Marriage" cake and a homosexual customer ordering a "Support Gay Marriage" cake. The former gets served, the latter does not. This constitutes discrimination on the grounds of sexual orientation.

The Judge then cites from Bull and another v Hall and another [2013] UKSC 73

"[37] To permit someone to discriminate on the ground that he did not believe that persons of homosexual orientation should be treated equally with persons of heterosexual orientation would be to create a class of people who were exempt from the discrimination legislation. We would not normally allow people to behave in a way which the law prohibits because they disagree with the law. But to allow discrimination against persons of homosexual orientation (or indeed heterosexual orientation) because of a belief, however sincerely held, and however based on the biblical text, would be to do just that."

The relevance of this is not immediately clear to me. Does this imply and allege that the people at Ashers Bakery do in fact "not believe that persons of homosexual orientation should be treated equally with persons of heterosexual orientation"? Up to this point, I thought the argument was that the claim that the bakers do not hold such a belief was granted but declared irrelevant because in spite of their best intentions "gay customers" (who can be assumed to be in favour of "gay marriage" and willing to promote this with cakes?) are in fact disadvantaged over "heterosexual customers" (who may be presumed to order cakes which say "Support Marriage"?) and hence indirectly discriminated against.

PS: In the second part the QC for the Plaintiff claims that it is possible to discriminate against someone on the grounds of their religious belief or political opinion even without knowing what these are. The Judge rejected the Defendant's claim that they did not know the customer's political opinion but agreed that even if this had been the case, the refusal to bake a cake with the message "Support Gay Marriage" would still have been a case of discrimination on the grounds of politic belief.

Ashers Bakery

I am not a legal expert nor the son of a legal expert. These notes are merely by way of digesting the judgement that the court delivered in the Ashers Bakery case, based on the published summary.

The defendants are not a religious organisation; they are conduction a business for profit notwithstanding their genuine religious beliefs and in accordance with Regulations 16(2) are not therefore exempted by the Regulations.

To me this opening gambit sounds somewhat prejudicial because it suggests that the oweners or managers of Ashers Bakery claimed exemption from anti-discrimination law which I am pretty sure they did not. (Reading the full statement it makes more sense, as it is in effect a comment on the decision by the law-makers not to include a conscience clause for businesses.)

Judge Brownlie agreed with "the plaintiff's submission that same-sex marriage is or should be regarded as a union between persons having a sexual orientation" which I read as implying that those who enter into a "same-sex marriage" should be considered to have a "same-sex orientation" although I am not sure where this leaves bisexuals and others. More importantly, Judge Brownlie also agreed that "if a person refused to provide a service on that ground then they were discriminating on grounds of sexual orientation."

This has a certain logic but is it relevant? No-one claims that this business transaction fell through because the customer is in a same-sex marriage (we don't know that he is) and the managers of the Bakery repeatedly stressed that they serve all customers without discrimination.

Judge Brownlie appears to grant that the managers did not actually know that the customer was gay. But they had "the knowledge or perception" that Gareth Lee either is gay or at least "associated with others who are gay." With this the Judge appears to insinuate that the Bakery discriminates against customers who associate with gays which would be remarkable.

The Judge explains that

the defendants must have known that the plaintiff supported gay marriage and/or associated with others who supported gay marriage as this was a cake for a special event the plaintiff was attending

I would have thought that the message "Support Gay Marriage" which was to be put on the cake would have given the game away without any knowlegde of the event for which the cake was requested. But Judge Brownlie recognises that supporters of "gay marriage" are not necessarily gay and hence settles for the lesser claim that supporters of "gay marriage" can be presumed to associate with gays. In addition, she concludes that Karen McArthur, who served Gareth Lee, knew that "the plaintiff was a member of a small volunteer group; he wanted his own graphics on the cake" etc. In other words, the customer was thought to be in agreement with the message he wanted to have put on the cake.

Fair enough, but what exactly is the relevance of that? Does the Judge want to argue that the cake was refused not so much for the message it was intended to bear but because the customer was thought to agree with that message? Indeed, this seems to be where this is going. The argument at this point appears to be that the Bakery refused to bake this cake not because they could not support the political message the cake was to convey but because the manager "must either consciously or unconsciously have had the knowledge or perception that the plaintiff was gay and/or was associated with others who are gay."

How so? The critical point, as far as the Judge is concerned, seems to be that "the graphics being lawful and not contrary to the terms and conditions of the company" cannot themselves be considerd the grounds for refusing the cake; the ground must therefore lie in the Bakery's perception of the customer. Hence the claim that the Bakery did not discriminate against a political belief only but against a customer and that on the grounds of his sexual orientation. On a first reading of the summary, the reasoning seems to me hostile and torturous.

That the refusal also constituted discrimination against a political belief can be shown more readily by making the fair assumption that the Bakery would have been happy to provide a cake that spells "support marriage". In refusing to add the word "gay" the Bakery was restricting Gareth's Lee freedom to manifest his beliefs. What the defendants were asked to do may put limits on the manifestation of their own religious beliefs but this is necessary to protect "the rights and freedoms of the plaintiff...To do otherwise would be to allow a religious belief to dictate what the law is."

Judge Brownlie held that what the defendants were asked to do did not require them to support, promote or endorse any viewpoint.

The defendants are welcome to their religious beliefs but must not "manifest them in the commercial sphere if it is contrary to the rights of others." To use an analogy I have employed earlier, bakers are printers, not publishers. A publisher may refuse to promote books of a certain political or ideological bent but a printer presumably is not permitted to refuse business on the grounds that they do not want to promote what is being printed.

The judgement has no direct application to charities. It concerns the commercial sphere and the rights of customers on providers. The decision implies that the conscience of providers must not interfere with the freedom of customers. The second part of the judgement is therefore arguably not so much a victory of "gay rights" over "religious rights" but of consumer rights over any other considerations. The owners and managers of Ashers Bakery are free to commission a Hindu printer for a booklet that proclaims that "Jesus Christ is Lord!" and may request a flower arrangement which spells "only mixed-sex marriages are genuine marriages" from a florist who happens to be a member of QueerSpace.

PS: The full statement by the Court is now also available