Tatchell: ‘gay cake’ verdict is defeat for freedom of expression

October 24, 2016 at 7:35 pm (Christianity, Civil liberties, Free Speech, gay, homophobia, law, LGBT, Peter Tatchell)

Peter Tatchell once again demonstrates his fairness, generosity of spirit and commitment to freedom of expression:

web-gay-cake.jpg
Ashers Baking Company refused to make this cake

The law should not compel businesses to aid political messages

London & Belfast – 24 October 2016

The Appeal Court in Belfast has today ruled that a local Christian-run business, Ashers Bakery, was wrong to refuse to decorate a cake with a pro-gay marriage message.

“This verdict is a defeat for freedom of expression. As well as meaning that Ashers can be legally forced to aid the promotion of same-sex marriage, it also implies that gay bakers could be forced by law to decorate cakes with homophobic slogans,” said human rights campaigner Peter Tatchell, Director of the Peter Tatchell Foundation.

“It seems that businesses cannot now lawfully refuse a customer’s request to propagate a message, even if it is a sexist, xenophobic or anti-gay message and even if the business has a conscientious objection to it.

“Although I strongly disagree with Ashers opposition to marriage equality, in a free society neither they nor anyone else should be compelled to facilitate a political idea that they oppose.

“Ashers did not discriminate against the customer, Gareth Lee, because he was gay. They objected to the message he wanted on the cake: ‘Support gay marriage.’

“Discrimination against LGBT people is wrong and is rightly unlawful. But in a free society, people should be able to discriminate against ideas they disagree with. I am saddened that the court did not reach the same conclusion.

“The judgement opens a can of worms. It means that a Muslim printer could be obliged to publish cartoons of Mohammed and a Jewish printer could be required to publish a book that propagates Holocaust denial. It could also encourage far right extremists to demand that bakers and other service providers facilitate the promotion of anti-immigrant and anti-Muslim opinions.

“What the court has decided sets a dangerous, authoritarian precedent that is open to serious abuse.

“Discrimination against people should be illegal but not discrimination against ideas and opinions,” said Mr Tatchell.

Read Peter Tatchell’s detailed reasoning as to why he changed his mind on the Ashers case (he initially supported the verdict against them) and why he opposes the new legal ruling:

Why I changed my mind on the Ashers gay cake row

The law should not require bakers to aid the gay marriage campaign

By Peter Tatchell

Like most gay and equality campaigners, I initially condemned the Christian-run Ashers Bakery in Belfast over its refusal to produce a cake with a pro-gay marriage slogan for a gay customer, Gareth Lee.

I supported his legal claim against Ashers and the subsequent verdict, which last year found the bakery guilty of discrimination. My reasons for supporting Gareth’s claim were:

1. Ashers had falsely advertised their services, saying they were willing decorate their cakes with any message that a customer wanted. They did not say there were any limits on the designs or wording.

2. I feared that Ashers actions could open the flood gates to allow sectarian loyalist-republican discrimination and discrimination against women, LGBTs and other minorities – and their points of view.

But I later changed my mind. Much as I wish to defend the LGBT community, I also want to defend freedom of conscience, expression and religion.

While Christian bed and breakfast owners and civil partnership registrars were clearly wrong to deny service to gay people, this case is different. It is about the refusal to facilitate an idea – namely, support for same-sex marriage.

I will continue to oppose the proposed “conscience clause” in Northern Ireland. It is intended to allow discrimination against LGBT people. I do not accept that people of faith should be permitted by law to deny service to LGBTs – or anyone else. Discrimination against people is never acceptable.

The whole saga began in 2014 when Ashers said they were not willing to ice a cake with the words “support gay marriage” and the logo of the equality group, Queer Space; claiming it was contrary to their Christian beliefs to promote homosexuality and gay marriage.

This struck many of us as discrimination based on religious-inspired homophobic prejudice. Ashers believe that the relationships of lesbian, gay, bisexual and transgender (LGBT) people are wrong and should not be eligible for the status of marriage. They translated these beliefs into action and declined to make the cake. Ashers would have decorated a cake with a message celebrating traditional heterosexual marriage and promoting a Christian organisation. Surely this was an example of clear-cut anti-gay discrimination?

Gareth Lee’s legal case against Ashers was backed by the Equality Commission of Northern Ireland. It argued that the bakery’s actions breached the Equality Act (Sexual Orientation) Regulations (Northern Ireland) 2006 and The Fair Employment and Treatment (NI) Order 1998, which prohibit discrimination in the provision of goods, facilities and services on the respective grounds of sexual orientation and political opinion.

A Belfast court last May agreed and found Ashers guilty of discrimination on both grounds; ordering them to pay Gareth £500 compensation.

I profoundly disagree with Asher’s opposition to same-sex love and marriage, and support protests against them. They claim to be Christians and followers of Jesus. Yet he never once condemned homosexuality. Moreover, discrimination is not a Christian value. Ashers’ religious justifications are, to my mind, theologically unsound.

Nevertheless, on reflection, the court was wrong to penalise Ashers and I was wrong to endorse its decision.

For sure, the law suit against the bakery was well intended. It sought to challenge homophobia. But it was a step too far. It pains me to say this, as a long-time supporter of the struggle for LGBT equality in Northern Ireland, where same-sex marriage remains banned.

The equality laws are intended to protect people against discrimination. A business providing a public service has a legal duty to do so without discrimination based on race, gender, faith, sexuality and so on.

However, the court erred by ruling that Gareth was discriminated against because of his sexual orientation and political opinions.

His cake request was not refused because he was gay but because of the message he wanted on the cake. There is no evidence that his sexuality was the reason Ashers declined his order.

Despite this, Judge Isobel Brownlie said refusing the pro-gay marriage slogan was unlawful indirect sexual orientation discrimination because same-sex marriage is a union between persons of the same-sex and therefore refusing to provide a service in support of same-sex marriage was de facto sexual orientation discrimination.

I disagree. Refusing to facilitate a message in support of same-sex marriage is not sexuality discrimination. It is discrimination against an idea, not against a person.

On the question of political discrimination, the judge said Ashers had denied Gareth service based on his request for a message supporting same-sex marriage. She noted: “If the plaintiff had ordered a cake with the words ‘support marriage’ or ‘support heterosexual marriage’ I have no doubt that such a cake would have been provided.” Brownlie therefore concluded that by refusing to provide a cake with a pro-gay marriage wording Ashers had treated him less favourably, contrary to the law.

This may be a case of differential treatment. However, it was not discrimination against views held or expressed by Gareth but against words he wanted on a cake. Moreover, the law against political discrimination was meant to protect people with differing political views, not to force others to further political views to which they conscientiously object.

The finding of political discrimination against Gareth sets a worrying precedent. Northern Ireland’s laws against discrimination on the grounds of political opinion were framed in the context of decades of conflict. They were designed to heal the sectarian divide by preventing the denial of jobs, housing and services to people because of their politics. There was never an intention that this law should compel people to promote political ideas, such as same-sex marriage, with which they disagreed – let alone on a cake.

The judge concluded that service providers are required by law to facilitate any “lawful” message, even if they have a conscientious objection to it.

This begs the question: Will gay bakers have to accept orders for cakes with homophobic slurs? I don’t think LGBT people should be forced to promote anti-gay messages.

The court judgement also leads me to ask: Should a Muslim printer be obliged to publish cartoons of Mohammed or a Jewish one a book that propagates Holocaust denial?

If the current Ashers verdict stands it could, for example, encourage far right extremists to demand that bakeries and other service providers facilitate the promotion of anti-immigrant and anti-Muslim opinions. It would leave businesses unable to refuse to decorate cakes, print posters and emblazon mugs with bigoted messages.

In my view, it is an infringement of freedom to require private businesses to aid the promotion of ideas to which they conscientiously object. Discrimination against people should be unlawful but not discrimination against ideas and opinions.

6 Comments

  1. m_jelly (@monsieur_jelly) said,

    “It would leave businesses unable to refuse to decorate cakes”

    https://shirazsocialist.wordpress.com/

    http://viz.co.uk/drunken-bakers-soon-be-easter-then/

  2. Joe in Australia said,

    Over many years, I’ve noticed that Tatchell’s views are almost always charitable, decent, and perniciously wrong. We already force bakers to comply with all sorts of laws regarding their products – what they can put in them, how much they must pay their workers, how the products are to be produced, stored, and presented; it’s not much of a stretch to regulate the terms on which they offer to make them.

    It may seem like a trivial matter, but if bakers can refuse service, why can’t hoteliers? In fact, why can’t anyone? As a society we have decided that gays should be able to live their lives without discrimination. We’ve already settled this; the baker’s hurt feelings aren’t reason to reopen the question.

    • Jim Denham said,

      This has been vigourously debated on my Facebook page:

      Matthew Thompson
      Freedom of speech/conscience doesn’t count for much if you think it should only apply to people who agree with you.

      October 24 at 7:20pm

      Jim Denham
      Rosa Luxemburg said something lik,e “freedom of speech is for those you disagree with”

      October 24

      Robert Greenwood
      Otherwise it is not freedom of speech.

      Donnacha DeLong
      Freedom of speech means the freedom to say things without fear of being arrested, it’s got nothing to do with discriminating in business. Arguably it’s about freedom of conscience.

      October 24 at 8:30pm

      Rosie Woods
      The Bakers freedom.of speech was not being impinged!!

      October 24 at 10:51pm

      Rosie Woods
      They were the ones denying free speech and discriminating.

      October 24 at 10:52pm

      מוטי פינסקי
      Sorry the problem with this ruling is that its faulty logic leads directly to a situation in which LGBT bakers would be compelled to make a cake for any customer who requested say “god hates fags” on it.

      Yesterday at 7:03am

      Rosie Woods
      No they wouldn’t because being a homophobe is not a protected characteristic. Being a Christian does not mean being a homophobe. If an atheist baket refused to bake a cake that said jesus lives, then yes that would be discriminatory I think. Against C…See More

      Yesterday at 7:52am

      Helen Russell
      Obviously a lot of people still don’t know about the Equality Act and protected characteristics Rosie!!

      Yesterday at 8:44am

      Matthew Thompson
      Free speech does not mean that a baker should be compelled to decorate a cake with a political slogan they disagree with, any more than a newspaper or magazine would be obliged to print an article which went against their editorial line: if you wrote a…See More

      Yesterday at 8:48am

      מוטי פינסקיי (reply to Rosie Woods)
      You are correct of course that being a homophobe is not a protected characteristic under the Equality Act….See More

      Rosie Woods
      Matthew the sun don’t offer a service of printing any articles. They write their own and offer their publication for sale. If they offered a service of printing all letters and then refused one advocating hay marriage but printed one advocating straight marriage they would be guilty of discrimination. It’s a completely different thing.

      Karl Hemsley · Friends with Matthew Thompson
      I admire Tatchell very much. How can it be illegal to refuse to make a cake that advocates a change to the law? I find it terrible that gay people in Northern Ireland are not treated equally in this regard and that they have fewer rights than those in …See More

      Yesterday at 8:13am

      Patrick Murphy
      Rosie’s right here I think and Tatchell’s wrong. It was made clear in the court today that the bakers do have a right to refuse to decorate their cakes with political or religious slogans but not to offer a service that does add such slogans but then deny it to some people based on their sexuality, race, religious belief etc.

      Yesterday at 8:57am

      Hide 11 Replies
      .
      Matthew Thompson
      Patrick, they would have refused to do it whether the customer was gay or straight.

      Yesterday at 8:59am ·

      Patrick Murphy
      That’s covered in the Equality Act. Discrimination by association. And rightly so.

      Yesterday at 9:00am

      Matthew Thompson
      What’s the association? Some gay people oppose same-sex marriage (e.g. Tatchell), and many straight people support it. It’s a political position, not an inherent characteristic of being gay or straight.

      Yesterday at 9:02am

      Rosie Woods
      But they would not have refused a pro straight marriage slogan Matthew. That is discrimination against a protected characteristic. If they had a policy of no political slogans then that is one thing. But they didn’t. They offered a cake decorating serv…See More

      Rosie Woods
      Because it is the gay community being discriminated against by refusing to write support gay marriage on a cake. Who ever asked for it, it is discrimination against the gay community.

      Matthew Thompson
      Rosie, as I said to Patrick, supporting same-sex marriage is not an inherent characteristic of being gay any more than opposing it is of being straight.

      Indirect discrimination usually covers things that are central to a protected category, so if you …See More

      23 hrs

      Patrick Murphy
      Discrimination isn’t only about things that are essential to a particular protected characteristic. It also covers things that, in practice, are far more likely to be associated with such a characteristic, eg part-time workers aren’t all women but are …See More

      22 hrs · Edited

      Matthew Thompson
      What if a printshop owned by a left-wing group which does commercial work was approached by an evangelical Christian group attracted by their low rates and asked to produce thousands of leaflets with passages against homosexuality from the Bible which they intended to hand out on the street with the printers’ logo on? Should they be legally compelled to produce them?

      22 hrs

      Rosie Woods
      No, because being a homophobe is not the same as being a Christian.

      12 hrs

      Rosie Woods
      You can have a policy of not printing material.of a discriminatory nature. That does not discriminate against Christians because being homophobic is not central to or evem peripheral to being a Christian.

      12 hrs

      Rosie Woods
      The equivalent is an atheist Baker refusing to write praise God in a cake. It would be discriminatory to have a service that offers cake decoration but you won’t write those words. You will primarily be discriminating against religious people, evem tho…See More

      12 hrs

      Victoria Jay
      Friends with Patrick Murphy
      I would have been wholly behind the ruling if the icing had read “Adam loves Peter”, but this slogan sounds more more like an unnecessary, and even counter-productive set up.

      22 hrs

      Jim Denham
      There’s a difference, I think between the formal, legal argument involving ‘protected characteristics’ and the political (and, iindeed, moral) argument about free speech and tolerance. Legally, the ruling is undoubtably correct: politically and morally, I tend to agree with Tatchell.

      22 hrs

      Les Hearn · Friends with Janine Booth and 5 others
      I have the greatest admiration for Peter Tatchell but the only grounds for refusing to bake a cake with a message is if, ludicrously, it had some sort of hate message. Would they have refused to bake a cake saying “Slaves, do not obey your masters”? I …See More

      Matthew Thompson
      They no doubt are selective, irrational, reactionary, the question is whether the law should be used as an instrument to bring them into line with majority opinion.

      This episode underlines the unbending nature of Northern Irish Protestantism; someone …See More

      21 hrs

      TR Peterson
      Matthew Thompson “The law should be used as an instrument to bring them into line with the majority” Really? That’s not usually how you win over hearts and minds. Not to mention it’s utterly authoritarian.

      21 hrs

      Matthew Thompson
      TR Peterson, yes I completely agree, as you’ll see from my comments above.

      20 hrs

      Rosie Woods
      They offer a service!! As a business. Yes, the law should make them.comply with agreed moral standards and guidelines. In their business.

      12 hrs

      Matthew Thompson
      It’s that idea, that once 51% of the population subscribe to an idea the other 49% should be legally compelled to too, that I find terrifyingly illiberal.

      1 hr

      Rosie Woods
      No one is forcing them to agree with an idea. In their private lives they are free to oppose it and campaign against it. Bit they are running a business for the public. On your reasoning why shouldn’t a bed and breakfast be able to refuse news to gay c…See More

      44 mins

      Matthew Thompson
      “On your reasoning why shouldn’t a bed and breakfast be able to refuse news to gay couples?”

      Because there’s a difference between discriminating against people because of who they are and not wishing to subscribe – or be seen/pretend to subscribe – to…See More

      21 mins

      TR Peterson
      Thank you Jim. I agree with you and Peter. This is a case where although “legal” it is morally wrong. Protecting free speech is superior to my “right” to have a cake made (I am LGBT). I think you have to look at what causes undo harm vs what is simply …See More

      21 hrs

      Karl Hemsley · Friends with Matthew Thompson

      One of the many things that strikes me as odd and wrong about this ruling is that if a straight person asked for this cake, as a supporter of civil liberties, then the bakers could say no without breaking the law. People must be be allowed to act according to their own conscience however much that offends the sensibilities of the majority.

      3 · 20 hrs

      Matthew Thompson
      my basic line is that as long as you’re offering the same service to people irrespective of their ethnicity, gender, sexuality, age etc. you shouldn’t be subject to legal sanction. if they’d said they don’t serve gay people or black people, I’d support…See More

      1 · 20 hrs

      Norman Johnson
      2 mutual friends
      Don’t often agree with Tatchell but he’s absolutely right here, nobody should be forced to facilitate a political idea with which he disagrees. Would a Jewish Baker be forced to bake a cake with a swastika on it? or a Muslim Baker produce a cake that lampoons their Prophet?

      13 hrs

      Rosie Woods
      How is lampooning Muhammed or a swastika protected characteristics or how would refusing to do those things discriminate against any community apart from racists and satirists. Neither protected in law. It’s different.

      12 hrs

      Les Hearn
      Friends with Janine Booth and 5 others
      There’s a wealth of difference between a positive message, say “Support gay marriage,” which does not oppress anyone and something like “Save Ulster from sodomy” which says, falsely, that a whole state is under threat from a minority of people who have the right to live their lives. Of course, those who support the latter are more likely to write their message of hate on a brick, rather than a cake.

      10 hrs

  3. Glasgow Working Class said,

    The baker should have made the cake then there would have been no fuss. However the customer should have respected the view of the baker and gone elsewhere. Someone would have made the cake. People are so touchy nowadays. Surely there must be a gay cakemaker in Belfast. Does a Tory printer have the right to refuse work for the Labour party!

  4. controversialchristian1 said,

    The proliferation of equal rights legislation and particularly their upholding, and the virus that is PC, has actually created the very opposite of what it promised to do. Tolerant liberals seem to be only tolerant and liberal as long as you completely agree with them on everything and every point. Henceforth, debate as it stands isn’t necessary, because either we all protect, promote and agree with everything an oppressed minority or someone from an oppressed minority does, says or is part of their culture, or you are a fascist, racist, bigot etc. It’s the puritan ideology of the affluent in their ivory towers, or the permanently offended who just like to scream and shout at someone who dares to have a different opinion, or shock horror, has the temerity to think for themselves. It is merely the latest New Orthodoxy we have to conform to. To these people, calling someone a racist or fascist is like someone in the past calling someone a heretic. Peter Tatchell is very courageous in challenging the nonsense of an ideology that proclaims the individual’s right to freedom of expression, conscience and action, yet does the exact opposite. Political Correctness is now a form of middle class fascism, in all but name.

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