Pandaemonium

THE MUDDLE OVER THE ‘GAY CAKE’

The cake Ashers would not make

This essay, on the row in debate about Ashers, the Northern Irish bakers that refused to make a cake with a pro-gay marriage slogan, was the main part of my Observer column this week. (The column included also a short piece on the changing attitudes of left and right towards the House of Lords.) It was published in the Observer, 6 May 2018, under the headline ‘The ‘gay cake’ fight: why the bakers had a right to refuse this order’.


It’s the case of the cake that wasn’t baked. And the story of how the icing on that cake became, bizarrely, an exhibit in the contemporary culture wars.

In 2014 Gareth Lee, an LGBT activist, asked Ashers bakery in Belfast to make a cake decorated with images of the Sesame Street puppets Bert and Ernie, together with the slogan: ‘Support gay marriage’. Ashers declined the order as the message ran contrary to the owners’ Christian beliefs.

The Equality Commission, to whom Lee took his case, sued Ashers for discrimination. The courts found the bakery to have unlawfully discriminated against Lee on grounds of sexual orientation and religious belief or political opinion. Last week, the supreme court heard Ashers’ appeal against that decision. It’s not expected to deliver its verdict for a few months.

At the heart of the case are two issues that have got muddled. The first is that of discrimination against an individual by virtue of his sexuality or religious or political beliefs. The second is the freedom to express one’s beliefs. Such freedom must necessarily include also the right not to express a view with which with one disagrees.

‘Although I strongly disagree with Ashers’ opposition to marriage equality,’ the veteran LGBT and human rights campaigner Peter Tatchell has observed, ‘in a free society neither they nor anyone else should be compelled to facilitate a political idea that they oppose.’ He is right.

Had Ashers refused to serve Lee because he was gay, or because of his support for same-sex marriage, then I can see why it would be guilty of discrimination. But it did not. It declined to decorate a cake with a particular message.

Ashers discriminated not against an individual but against a specific political demand. To compel an individual or business not to discriminate between political demands has, as Tatchell points out, ‘dangerous implications’: ‘A Jewish publisher could be obliged to print a book that propagates Holocaust denial. Likewise, Muslim publishers could be legally pressured, against their will, to print the Danish cartoons of Muhammad that Muslims find deeply offensive.’

The irony is that when it comes to Holocaust denial or cartoons about Muhammad, people are more likely to be censored for expressing their beliefs than compelled to do so. In many European countries, Holocaust denial is a criminal offence. And while the Muhammad cartoons are not banned by law, few newspapers or magazines wish to cause offence by publishing them.

The authorities, both in Northern Ireland and in the rest of the UK, have long attempted to censor religious material regarded as offensive. In 2015, a Christian pastor from Belfast was prosecuted for ‘hate speech’ for a sermon in which he claimed that Islam was ‘satanic’. He was eventually acquitted, but the case should not have come to court at all. Other Christians prosecuted for preaching hatred include Michael Overd, convicted at Bristol crown court of quoting homophobic passages from the Bible, and Shawn Holes, fined for preaching on the streets of Glasgow that gays deserved the ‘wrath of God’.

Not that Christians themselves are slow to censor. In 2014, the Reduced Shakespeare Company’s play The Bible: The Complete Word of God (Abridged) was pulled from a Northern Ireland theatre after complaints from Democratic Unionist politicians. ‘The Bible is the infallible word of God and it’s not something to be made fun of,’ claimed DUP councillor Billy Ball.

The law is in a muddle when it comes to questions of free speech, religious freedom and discrimination. It seems to require people to facilitate views with which they disagree but deny others the right to express their beliefs.

Everyone should have an expectation of equal treatment in services offered to the public, even if those providing the service disagree with such equal treatment. An atheist pub owner does not have the right to bar Christians, however much he may loathe religion. Similarly, Christian B&B owners should not be able to turn away gays, even if they believe that homosexuality is a sin.

Equal treatment, however, is not the same as forcing someone to express particular views. All should have the right to express their beliefs, however offensive others may find them. No one should be required to promote views they find unpalatable.

A Christian pastor should be free to offend Islam (and Muslim preachers Christianity). But he cannot be forced to preach that same-sex marriage is a good. Nor should a baker be obliged to ice a message with which he fundamentally disagrees.

27 comments

  1. damon

    This decision and that of Count Dankula and his small dog doing the Nazi salute, show that our judges really aren’t up to the job. How can supposedly learned people be making such bad decisions?
    The country really has lost the plot. We are drifting badly.

    Would the bakers also have been forced to make a cake celebrating a 32 county Irish republic if they were Unionists? Or was it just the gay angle? Which is odd in a part of the U.K. that forbids gay marriage.

    • harlan leyside

      Whenever and wherever speech is subject to legal sanction, subjectivity and selective bias will dictate what speech is penalised and what is permitted. Language is too subjective, too open to alternate interpretations, to prone to different reactions, to be treated as if it’s akin to shooting or stabbing.

  2. Salo

    When does speech become incitement? And should incitement be banned? In the case of the cartoons, there is obvious satire. But preaching that a faith is satanic strikes me as a different thing.

    • harlan leyside

      Speech should always be permitted – publish and be damned. If it can then be proven, after a particular speech act, that criminal harm/damage directly resulted from it, then legal action against the speaker(s) seems reasonable. But who can tell, merely from a speech act – or worse, a supposed type of speech act – whether serious harm will follow? If incitement succeeds, it should be punished. If it fails – which is much more common – then that should be protected speech.

  3. The Ashers bakery (and indeed any other commercial enterprise) sets up to provide a service to the public.
    By law they are supposed to serve the public without any discrimination.
    If Asher’s bakery (or any other commercial enterprise) wishes to draw lines about what they will or will not do , who they will or will not serve, all they have to do is display a message in their windows, advertising etc. e.g. this company abides by fundamentalist christian values and will not accept orders for cakes celebrating gay marriage, adultery, sodomy, one night stands, prostitution, kill thy neighbour,drunkenness, theft, honouring any other God before ours etc.
    Watch their trade fall off

    • harlan leyside

      Is that really satisfactory, though? Businesses can discriminate against customers, depending on the speech customers want printed, as long as business make clear in advance that they will do so and what/who they will discriminate against (e.g. against pro-gay marriage messages, pro-gay messages, overt gays..)? And should businesses be expected to second guess any/all possible speech that customers may want, but which the business owners/workers find too offensive for them to print?

      If they are printers, who offer to print – in general – whatever customers want, why should they have any say in what to print and what to refuse? They are mere facilitators of speech; the speakers are the customers. And if society supports speech freedom, as a good thing in and of itself, perhaps citizens should be positively enabling others to speak whenever possible? That would oblige speech facilitators – e.g. print shops, custom-design cakeshops like Asher’s, social media platforms like Facebook or Twitter, etc. – to print/permit any speech by anyone, providing it it’s legal (though the law is an whole other problem area, given how many speech restrictions it includes).

      Alternatively, if cakeshops, printers, social media sites, etc. are accorded the status of publishers – who contribute to the expressive process by choosing what ideas/messages/etc. they want exposed to an audience – then they should be free to decide in any instance for any reason whether to print any speech or refuse.

  4. Much as I respect your opinion, and indeed that of Peter Tatchell, I must disagree here. As I see it, the slogan on a cake is not the speech of the person making the cake. They are merely providing a service, acting a role as a person doing a job. No-one would expect them to agree with any given slogan on a cake they make. If they were asked to make a cake with a slogan supporting one football team then they should make it even if they are fans of a rival team. This is just part of what providing a public service is about.

    If we accepted that people performing a job role can decline to utter speech that’s against their views, then, for example, a marriage registrar could decline to utter the words that marry a gay couple. Of a judge could refuse to issue a ruling that the law required him/her to issue, if it conflicted with his/her religious opinion.

    I don’t find the comparison with a publisher convincing. A publisher is not offering a public service, in that they generally decide to publish only a small fraction of the books offered to them. Thus a publisher can thus legitimately have a “house ethos” of what sorts of books it publishes.

    • The correct analogy would not be with a publisher, but with a printer who declined to print material of which he disapproved. Surely we would allow that choice. And in any case, the issue is not whether the baker’s actions are morally defensible (I think they are; he is acting on his own principles, misguided thought they be), but whether they are iilegal, and, of so, whether the law is a good one.

      I think we have a dangerous confusion between discriminating gainst an individual and against a viewpoint. The law is good; it should be illegal to deny a service on the grounds of the sexual orientation of the customer. The factual finding is shockingly bad; if we equate objection to an idea with objection to those who hold it, we lose such important distinctions as that between critique of Islam and Muslim-phobia

    • harvardreferences

      Why should a publisher have the right to reject a political message, but not a baker? No one things a publisher agrees with the idea in every book they publish, but they are still effectively just performing a ‘job role’. It seems to me to be an odd hair splitting distinction to say one provides a ‘public service’ but the other not. Would a small but incredibly popular baker be on stronger legal grounds by virtue of the fact they routinely had to turn down business?
      I think Tatchell’s analogy is an excellent one for highlighting the absurdity of what the law would in affect be saying if it finds against the bakery.

    • “Why should a publisher have the right to reject a political message, but not a baker?”

      If a baker offers a general “ask for a cake and we’ll bake it” service then they should fullfil that whatever (they are entitled to decide what services to offer, so if their policy is “no religious/political slogans” from the outset then fine).

      A publisher, however, is not offering a general “bring us your book and we’ll publish it” service. (Well, maybe some vanity publishers do, but in general publishers are not offering that service, and so are not under any obligation to publish your book.)

      As for a printer, well if they are offering a general “we print anything” service then yes they should be expected to print anything legal and not decline custom owing to their religious views.

      So, (1) businesses offering a public service can specify what services they offer; (2) that specification of services should not contravene discrimination law, and (3) once they’ve decided what services to offer they they should not decline service for discriminatory reasons.

      And (4) any “speech” involved in such services pertains to the business, and is not personal speech; and businesses offering public services have less freedom of action and freedom of expression than a person does when acting as a private individual.

      • Coel,

        We are talking about what the law should require, rather than what we think is correct conduct, but let that pass.

        There are some occupations (lawyer, taxi driver, wedding registrar) where we expect the business operator to take on all clients, short of exceptional circumstances such as active collaboration with illegality, and there are good reasons for this.

        In general, however, we have a potential conflict between two principles; to treat all potential clients even-handedly, and to refrain from assisting them in what one regards as wrong. You favour the first principle, I the second. In a way, this is a conflict between deontological and virtue ethics. In such a case, I think we must simply continue to disagree.

        Your suggestion that a business publish in advance what it is or is not willing to do, is absurdly onorous, and does not allow for the unforeseen. However, it seems to me at least possible that the baker’s views and attitudes were so well known locally that the business had ain effect met your demand. It may even be that that was part of the client’s motivation, in offering the work to this particular baker. So I see this suggestion as one that promotes conflict by forcing people to take sides.

        I’ll leave it there.

        • Hi Paul,

          “There are some occupations (lawyer, taxi driver, wedding registrar) where we expect the business operator to take on all clients, …”

          Isn’t the whole point of equalities legislation that all businesses should operate that way? At least when it comes to protected characteristics.

          “Your suggestion that a business publish in advance what it is or is not willing to do, is absurdly onorous, and does not allow for the unforeseen.”

          It’s not really that onorous. All businesses currently advertise what services they offer. If they offer them, then they should offer them equally.

    • I broadly agree, as you night expect, with many of the points made by Paul Braterman and harvardreferences. But let me pick up a few other of Coel’s arguments.

      If we accepted that people performing a job role can decline to utter speech that’s against their views, then, for example, a marriage registrar could decline to utter the words that marry a gay couple. Of a judge could refuse to issue a ruling that the law required him/her to issue, if it conflicted with his/her religious opinion.

      It is not a useful comparison. Marriage registrars and judges are not private businesses providing a service for the public, but public officials and state functionaries. As such they are obliged to carry out the functions required of them as public officials and state functionaries. You argued that ‘businesses offering public services have less freedom of action and freedom of expression than a person does when acting as a private individual’. The same is true of the distinction between a business and a public office. There have been cases of marriage registrars refusing to marry same-sex couples. I have argued, and will continue to argue, against their right to refuse.

      once they’ve decided what services to offer they should not decline service for discriminatory reasons.

      This is to beg the question. For what we are debating is what constitutes discrimination, and whether ‘discrimination’ refers to a single kind of action. My argument is that the law is muddled over what constitutes discrimination, because it conflates discrimination against individuals, by virtue of their sexuality or race, or religion or political belief, etc, with discrimination between political demands. It seems to me that for the law not to allow discrimination between political demands is dangerous.

      Isn’t the whole point of equalities legislation that all businesses should operate that way?

      Except that you yourself made the argument that a publisher is a different kind of business to a baker and therefore should not necessarily be constrained by the same rules.

      As for a printer, well if they are offering a general “we print anything” service then yes they should be expected to print anything legal and not decline custom owing to their religious views.

      I would not be so sanguine about this. Suppose a racist demands that a printer produce posters that demand ‘Repatriate all blacks’. Or ‘Jews pose a threat to our nation’. Should a printer have to print them? We can have a debate about whether it is better to allow unpopular, even odious, ideas to be aired. But that’s different from the state compelling someone to print such claims.

      You may argue that such demands are inflammatory or forms of incitement to hatred. The law would probably back anyone who does argue that. But that is also where I disagree with the law. It should not be illegal to make such political demands. But nor should anyone be compelled to promote or facilitate them.

      • harlan leyside

        f society prioritises individual over group rights – the basis of human rights, surely? – then should ‘public sector’ employees – on an individual basis – be compelled to provide services/goods that ‘private sector’ employees/employers may refuse to? Both sectors provide the public in general with goods/services they have a reasonable expectation of receiving. Refusal of service by private sector workers may cause as much or more upset/harm to people as refusal by public sector workers may do.

        Moreover, if an individual believes their religion prohibits them facilitating or supporting gay marriage in any way, should they be any more compelled to act against them, whatever their occupation (public or private sector, employee or employer)? In a liberal democracy, is it humane to reduce someone to mere ‘public officials and state functionaries’?

        If society seeks to maximise freedom of expression (some hope!) and tolerance, it seems to make more sense to achieve compromises and allowances wherever possible. Compelling people to act against their wishes should be a last resort. So, if other registrars can be found to officiate gay marriages, then employees wanting to be excused from doing so, should be. Similarly, if a printer or baker prefers not – or outright refuses – to produce speech expressing ideas they oppose, they should be tolerated, providing alternative facilitators are easily accessible to the prospective customers.

        However, if free speech is deemed fundamental to liberal democracies, then – whether public sector or private sector – refusal to print/host/facilitate speech that results in preventing that speech from being expressed (e.g. all printers in an area refuse to print gay marriage supporting speech), should be penalised. This is messy, and could lead to problematic attempts at enforcement, but that’s the case in practice with many areas of public activity.

  5. I note that the appeal court judgment was based on the fact that sexual orientation and political opinions are specifically protected against discrimination in NI. I may be wrong but I suspect the latter’s scope (for perhaps obvious reasons) is a bit wider than jurisdictions elsewhere in the UK. The implication of the bakers’ case was that they would have produced a cake that stated ‘Support Heterosexual Marriage’ or perhaps even one that stated ‘Oppose Gay Marriage’ – which is pretty clearly discriminatory. They judges point out that they could have avoided the issue by a blanket refusal to produce cakes with any religious or political messages (or more specifically here cakes with any messages about marriage!) It’s difficult to believe that the example messages you give would (apart from their falling afoul of other strictures) be considered ‘political’ opinions by the courts rather than just racist ones. More difficult would be a message of support for the BNP, say – which might as a legal political party be protected. But it does seem that a service to reproduce certain types of message in whatever form comes with a certain risk in this regard.

    • harvardreferences

      “The implication of the bakers’ case was that they would have produced a cake that stated ‘Support Heterosexual Marriage’ or perhaps even one that stated ‘Oppose Gay Marriage’ – which is pretty clearly discriminatory.”

      But is it? I don’t see how that changes anything. It would seem pretty obvious that if they refuse to produce something with a political message they disagree with they would produce something with a message they did. It doesn’t help answer the question whether they should be allowed to, as opposed to refusing simply because the prospective customers were having a same sex marriage.

      I’m also unclear what the political/racist distinction makes. They can be both. ‘All blacks and Asians should be repatriated as they’re not really British’ is clearly a racist statement, but it’s also clearly a political one. Kenan’s position on hate speech laws (which I agree with) are well known, so whether they would be by the court or not they should be, and it should be legal to both disseminate them, but also to refuse to with being accused of discriminating against the racist.

      • Obviously there is a distinction between arguing what the courts should decide in the light of the existing law, and what effect the ideal law should have. But of course there can be no such thing as ideal law, and the courts are permitted to use common sense in interpreting it – in which case I think it is possible to identify a distinction between bona fide political and simply racist. And a statement does not cease to be racist because it is also political.

        The point I made about the ‘Oppose Gay Marriage’ cake is that the bakers were specifically refusing to make a cake that was supportive of a protected community. They could have refused to make a cake in support of dogs say, or generally refused to serve the community of people that only order cakes for the purpose of illustrating them with political messages – to take the point to absurdity – since these groups have no specific protection in law.

        Why should there be a law protecting certain communities (which I assume you and Kenan support in principle) that extends to broadcasting messages? Imagine a remote town where only one printer can earn a living. Should that printer be allowed disproportionate influence on the community in which she operates by being allowed to discriminate against campaigns that she disapproves of by refusing to print their communications while printing those of ones of which she does approve? I think it is a difficult question – and there probably has to be a compromise in that she is entitled to discriminate in some ways but not in others. The current legal compromise seems to be that she cannot discriminate on the basis of innate human characteristics – and I think that is not unreasonable.

        • it is possible to identify a distinction between bona fide political and simply racist.

          A racist opinion does not cease being ‘bona fide political’ by virtue of it being racist.

          Why should there be a law protecting certain communities (which I assume you and Kenan support in principle) that extends to broadcasting messages?

          I oppose discrimination against people by virtue of their race, sexuality, gender, etc. I don’t accept that the law should protect certain communities from having certain things said about them, so long as whatever is said does not incite violence. I take, in other words, the First Amendment view.

          Should that printer be allowed disproportionate influence on the community in which she operates by being allowed to discriminate against campaigns that she disapproves of by refusing to print their communications while printing those of ones of which she does approve?

          Earlier in this thread, Coel argued that publishers should be allowed to pick and choose what it publishes. I don’t know whether you agree. But if you do, then presumably you think that it is acceptable for publishers to have a disproportionate influence on such a community. If you don’t agree, then you seem to be suggesting that publishers must publish anything they are offered. They must publish a book on, say Holocaust denial, or on why 9/11 was a false flag operation. Is that your view?

          Earlier you also argued that ‘a message of support for the BNP… might… be protected’ because it is a legal political party. ‘Might’ is an odd word here: if it is a legal party (and it is) then support for it is definitely legal. Presumably, then, you would also insist that printers/publishers/cake makers must publicise its views and policies if asked to do so. Is that your view?

          I do think that there is a moral and political argument that even unpalatable views should be heard, because they simply fester if pushed out of public view and challenged. I also think that publishers (and theatres and galleries, etc) are too frightened of offending certain groups, and so back off from publishing or staging or exhibiting certain kinds of material. I have long argued against such self-censorship. But I don’t think that people should be compelled by law to publicise such views or to stage or exhibit such material. And it’s the issue of compulsion that we are debating here.

          By insisting that the state decides what can and cannot be said, the state has a disproportionate influence on opinion. In my view it is more dangerous for the state to exercise such influence than it is for a private individual. As I have observed many times, when we allow the state to draw the line over what opinion is and is not acceptable, the people who suffer most are minorities and those fighting injustice.

  6. harlan leyside

    ‘Your comment is awaiting moderation’? Sorry, I was lead to believe this site was unmoderated

    • I’m not sure who led you to believe that, but there is moderation; not to censor – I don’t normally reject comments – but to prevent spam comments which, these days come in bucketloads.

  7. harlan leyside

    Kenan

    If views ‘simply fester if pushed out of public view and [sic] challenged’, perhaps the best thing progressives can hope for is that their views are repressed, banned and made taboo in ‘polite society’? Instead of fighting for free speech, those seeking to achieve their political goals should campaign to be silenced? 🙂

    If insisting that the state supports progressive views, decides what can and cannot be said – in line with such views – results in the state having a disproportionate influence on opinion, then great! But is it true?

    When ‘private individual’ = transnational social media companies like Google, Facebook and Twitter, is it necessarily true that their power to regulate speech, and potential to influence public opinion, is less that the state’s?

  8. diarmidweir

    Kenan, thanks for your response to my comments. I deliberately referred to a printer rather than a publisher because a publisher fulfils a different role – in which ‘discrimination’ is part of the up-front package. A printer that advertises a willingness to print political messages, on the other hand, might reasonably face some restrictions (I believe) in discriminating between messages. A publisher’s geographical location might also be much less significant, giving a wider market.

    As to the distinction between ‘politics’ and ‘racism’ I would only ask the question: what sort of coherent politics can be built on the non-existent category of race?

    When I referred to the BNP’s political (but non-racist) messages being ‘protected’, I meant protected from refusal of a printer (of political messages) to print, rather than protection of the BNP’s right to express their views themselves – which I certainly accept.

    I generally agree that there should be minimal restriction on expression and minimal compulsion of expression, but I think it is not unreasonable to make exceptions in the case of currently disadvantaged minorities. You seem to be suggesting this could be the top of a ‘slippery slope’ – which is an argument I never find convincing, since the perceived top of such slopes is entirely arbitrary.

    • harlan leyside

      So what ‘exceptions’ should be made? Current, albeit and inevitably arbitrarily applied, ones can be used against ‘minorities’ as well as supposedly in their favor. Western societies are sliding down that slippery slope to ever greater speech suppression, and have been for some time.

    • diarmidweir

      I deliberately referred to a printer rather than a publisher because a publisher fulfils a different role

      I know you want to distinguish between publishers and every other business. My point is that in certain respects, publishers are not so unique. You accept that the state should not compel a publisher to publish views it did not wish to; I am arguing that this applies to all businesses facilitating an expression of a viewpoint.

      As to the distinction between ‘politics’ and ‘racism’ I would only ask the question: what sort of coherent politics can be built on the non-existent category of race

      If we are going to ban all political viewpoints that are not ‘coherent’, there would not be much left. Or, to put it another way, what kind of politics is ‘coherent’ is itself part of the political debate.

      You seem to be suggesting this could be the top of a ‘slippery slope’

      I did not mention a ‘slippery slope’. My argument is about whether people or businesses should be compelled to facilitate the promotion of views they do not wish to promote.

      • harlan leyside

        There’s a clear difference between publishers – who make money depending on their ability to sell specific speech content – and printers, who make money by reproducing whatever content customers want them to. Publishers provide speech to customers; customers provide speech to printers. So, whereas publishers have a vital and vested interest in deciding what/whose speech to publish; printers have a vital and vested interest in printing whatever customers want them to. Publishers are involved in content creation; printers are mere technicians. Printers skill and function has nothing to do with the content of speech they publish; neither does their success or failure in any way depend on choosing certain speech-content to print over other speech-content. They’re most likely to succeed by offering to print any speech content; publishers are most likely to succeed by choosing carefully what speech content to publish.

        To sum up: publishers are, in a sense, speakers; printers are simply reproducing speech for speakers. If societies support and value free speech, then they need printers to be neutral facilitators; otherwise, printers – who play no role in content creation – are acting as de-facto censors when they impose themselves on customers by selecting speech to print and speech to reject.

        • I did not say there were no differences between publishers and other businesses. I wrote that ‘in certain respects, publishers are not so unique’. The debate here is about 1. The facilitation of certain expressions and 2. Whether individuals or businesses should be compelled by the state to facilitate views with which they may disagree. My view on the second issue is ‘no’. I believe in free speech: the state should not censor speech except when it directly incites violence. The corollary is that the state should not compel people to express or facilitate speech they do not wish. That is the issue here.

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