A printer, a sign maker and a baker walk into a courtroom. And if this sounds like the start of a joke…
The printer stands accused of refusing to print a leaflet backing the death penalty and therefore committing political discrimination against people who want the death penalty reintroduced. And presumably also discriminating against dead people.
The sign maker is charged with racial discrimination – he wouldn’t make a sign for a shop that wanted to put up a ‘no blacks allowed’ notice, and therefore is guilty of discriminating against people who are not black.
The third is a baker who wouldn’t bake a cake with a slogan supporting the introduction of gay marriage. This, apparently is discrimination based on sexual orientation, and religious because the bakery cited the religious beliefs of the owners as behind the refusal, and political discrimination, because they’re disadvantaging people with a particular political view.
And this is one big joke. But not the kind with a witty punch line, but the sort that leaves you hanging your head in despair. These three examples all surely exist in the category of ‘you couldn’t make it up’. For the first two I have made them up, but the bakery is a real example, and they are now being pushed to court by the Equality Commission in Northern Ireland.
First of all let us be clear what this is not. This is not a case of a Christian refusing to serve someone because they are gay. Those ‘no blacks allowed’ signs were taken down for a reason, and more recent equality legislation extended protection and you cannot refuse to a good or service to someone because of their sexual orientation (with protection also for age, gender, religion, marital status as well as race). There’s been controversy over this, and concern for what happens when these protections might come into conflict, but in Great Britain at least the legal situation is clear.
In this situation the sexuality of the customer is not relevant, the customer could have been gay or straight, the issue was not who the customer was but the cake they were ordering. If the cake was for a same sex wedding ceremony it would be a clear case of discrimination, that they made wedding cakes for straight couples, but not for a gay couple.
Secondly, I should clarify I have a very limited understanding of the law in Northern Ireland on this point. It differs from Great Britain and includes provisions relating to religious and political discrimination which I imagine were designed due to the particular history of the nation and the religious and political tensions that run through it.
As far as I understand the law in Great Britain (and of course it may be different in Northern Ireland) one is free to choose not to publish political campaign material if they disagree with it. So I can choose whether or not to print a poster advocating the death penalty, or cancelling international development, or I can refuse to print a sign for a political rally. Yes, this is a form of discrimination, in the same way a shop not serving alcohol to someone under 18 is discrimination, but it is legal.
As far as I can see the choice not to bake a cake with a campaign message in favour of gay marriage is part of this latter category, it is the choice not to endorse a political message, and not the discrimination against a person on the basis of a protected characteristic.
Who, exactly is being discriminated against here? The customer for not being served, the baker for being told their religious views should not be allowed into play, or the cake for not getting Bert and Ernie gracing its icing?
The bakers were not discriminating based on the sexuality of the customer because both gay and straight people campaign for the introduction of same sex marriage. This wasn’t religious discrimination because the religion of the customer had no bearing on whether or not they were served.
The provider’s beliefs did make a difference but is this now suggesting that people are unable to make decisions over what they do or don’t do based on religious belief? The most obvious example is whether the same approach in Great Britain could be taken to force a doctor who objects to abortion on religious grounds to carry out abortions because to not do so would be religious discrimination.
I suppose the logic of the Northern Ireland Equality Commission is that in refusing to make this cake on the basis of their religious beliefs Ashers bakery were discriminating against people who did not share their religious belief. A comparison to this logic would be to take a Christian newsagent to court for not selling pornography which they object to on grounds of their faith. The newsagent down the road who took the same decision but without any religious motivation would be free not to sell pornography. Absurdly, to apply the regulations in this manner would be discriminating against the Christian newsagent for taking action on account of their religious beliefs.
Comparisons are frequently made between LGBT rights and the civil rights, some of which are fair, others are questionable. In this case, the comparison would be for someone who refused to print a ‘no blacks allowed’ sign to be guilty of discrimination. This is ludicrous, nonsensical and of course shouldn’t be allowed.
Neither should this current action against the bakers. If it is allowed to continue it is shutting down public debate, and a supposedly independent equality commission is acting as a coercive force stopping those who disagree with changing the law from the freedom to stand by that political opinion.
This is not about gay rights, it is not about homophobia. It is not even just about religious freedom (although it certainly is about that), it is about ensuring that fundamental freedoms of political disagreement and debate are not undermined and dissenting voices protected and not prosecuted.
My colleague in Northern Ireland has also posted on his blog ‘Are the Equality Commission baking mad?’
Peter Ould posted similar thoughts to mine on facebook