Bake Me A Cake – Opening Pandora’s Box?

A bakery in Northern Ireland was found guilty of discrimination for refusing to decorate a cake with a pro gay marriage message. The bakers cited their Christian views as a reason to refuse service. The media have exploded with “what if” someone asked a Muslim baker to decorate a cake with the picture of Mohammed on it? On the TV show “Loose Women” Nolan Coleen said what about a cake where the icing supported ISIS?

There seems to be confusion over what the Equality Act means, free speech and religious freedom. Different issues, all important as they overlap. So let me try to unpack all this in a short post. What follows is not legal advice – and any lawyers reading please feel free to comment or correct.

Ashers bakery refused an order for a cake which would have said “support gay marriage.” This failed the Equalities Act because it meant discriminating against gay people who would have wanted decorated cakes linked to being gay. Religious objections were invalid for a bakery, in a way they may not be for a religious organisation. The secular principle as workers and customers we are equal citizens first would apply.

The Mohammed on a cake example (the assumption being the Muslim would refuse service), cited by Simon Jenkins in an article and mentioned by Ian Hislop on Have I Got News For You, is not the same. Both mention a Christian asking for this decorative cake from a Muslim. Such a cake has nothing to do with being a Christian. Refusal of service would not be based on the faith of the customer, nor indirectly linked to it (as in the support gay marriage).

If you want to argue free speech means they must bake the Mohammed cake, for the baker must be detached from their creation to serve the wants of their customer, bare in mind there is no legal obligation to bake. The ISIS cake asks are there red lines that are understandable for the conscience of a baker, or are all irrelevant? Rather than call for Coleen to be sacked, I would say here is the bottom line: if it does not breach the Equalities Act, a baker can refuse service to someone. So that Mohammed or an ISIS cake could be refused, because making those cakes are not an equality issue regarding discrimination to the person asking.

There are more interesting hypotheticals that the QC defending Ashers bakery could have used instead: a Christian asking a Muslim baker to make them a batch of hot cross buns for a Church celebration at Easter or a butcher legally required to supply halal meat if asked, or would they be discriminating against muslims if they object against Islam requiring this? If the Muslim baker declined, would the law state both have protected religious characteristics. If the judgment in Northern Ireland may be read you cannot discriminate against religion, it would mean that anyone supplying a made to order service would have to supply a religious festival or dietary requirement they disapproved of if their objection was they disagreed with it.

Pandora’s cake box is opened much wider than the discussion may have led you to believe. Religious freedom either means all citizens must be catered for by services offered to the public, or services are recognised as being staffed by citizens whose religious freedom means they can refuse citing their own religious freedom to disagree in participating. The law is favouring universal service to end discrimination of customers. The question is will this lead to unintended consequences.

In summery: you cannot cite religious objections if that leads to discrimination or indirect discrimination that contravenes the Equalities Act. Being gay is a protected characteristic, as is being religious, for customers or potential customers. Denial of service by the bakery was discrimination. A Christian denied a Mohammed cake would have to prove discrimination based on their being a Christian – something which would fail the direct or indirect discrimination case in examples mentioned above. By contrast, a Muslim given a Mohammed cake might well have a case for harassment if it was known they were a Muslim that would object. A butcher may not be able to say “I disagree with Islam on this” as a reason to refuse obtaining halal meat.

Hopefully I have given you food for thought. This is one subject where it may give indigestion trying to have your cake and eat it.
Additional originally written as a comment by me:

I am explaining the Equality Act – being gay is a protected characteristic from discrimination. The judge was satisfied the defendants knew he was gay. The judge mentioned getting the non Christian employee to do the icing or sub contracting the icing to another bakery. Their main point was that if the bakery was prepared to bake a “support heterosexual cake” then it was discriminatory not to bake the other.

It should be noted reading the judgment, if the cake was meant to be shared with other gay people, even if purchaser had been heterosexual, the judge would still have held as discrimination. Also, they had agreed to bake the cake, but then changed their mind over the weekend.

I am not defending the judgment but *explaining it* and the ramifications – including how the Equality Act may be interpretated. I don’t think a Muslim baker should be compelled to make hot cross buns, or a non Muslim butcher to stock halal produce, under the Equality Act.

This judgment makes those a step closer, which is why I am against it. We should all be free in our religious opinions and not compelled to provide an additional service which counters it.
I would love to live in a country where free speech would be seen as a virtue, so they would have baked it even though against their sentiments. That they would have refused to bake this cake for anyone to my mind suggests a bigoted view on gay marriage, but not a discriminatory one.
NB I am going to be at the Hay Festival this Sunday night till Wednesday morning. So do say hi, and feel free to get in touch via twitter, if you want to discuss things if you are there. Ideally over a drink.

Article written by John Sargeant on Homo economicus’ Weblog

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6 Comments

Filed under British Politics, British Society, Religion, secular, Secularism

6 responses to “Bake Me A Cake – Opening Pandora’s Box?

  1. Dani

    Would you say that this law could be used to stop pharmacist workers discriminating against people wanting emergency contraception?

    • Possibly, if the refusal was based on them thinking customer was a catholic. If they refused everybody it would be harder to say discrimination was based on religion. Personally, I do see it as discrimination of women but I could not say if the act gives grounds for a successful legal challenge. Hope it has been looked into. If this judgment changes things, that might be a good example of unintended consequences when law devised.

  2. Strangely enough, I’ve wrangled with more social liberals than I have conservatives over this. The biggest complaint I’m hearing from the left centers around the “weariness” of cis-hets feeling *put upon* having to support gay issues. Evidently cakes are just too trivial to bother with. The other meme I’m running into from the left is that business should be able to refuse service to those they feel like regardless of the issue. In a sense, I do agree that if a bakery didn’t want to make a cake, I’d make it myself. [And do a better job]. My boycott of the business would have no net effect financially, as the gay demographic is usually a small one. Ergo, no consequence to the bakery. I did take some to task for their position on business refusing service to customers. While they would like to keep the focus on “cakes” there are a lot of service industry businesses out there. My concern is a much larger one. What about medical care? Legal representation? Or any of the other myriad aspects of business having a great deal more impact than doing without a cake. If a rural town had one food store for instance, would it be permissible to deny certain customers access?
    Business isn’t church regardless of the owners/employees closely held beliefs. Its time to end this religious sickness with a return to secular pluralist society.

    • Yes you share my frustration that the issue is far wider than many discuss. The law suggests butchers will have halal meat in if a Muslim customer asks, and restaurants have a halal option too as part of a secular pluralist society. Let alone the law requiring such consideration.

  3. Are you saying if the customer is in such a protected class- speech that is directly representative of said class cannot be rejected? Would that mean unless I’m gay I can’t get a gay wedding cake? Even as a heterosexual- one could be motivated to stir up trouble for Christian bakeries by asking them for gay wedding cakes- so in such a case they would need the right to refuse service. (Which seems strange) Otherwise- If Christians can’t refuse to bake cakes with gay themes requested by non-gay customers, the requirement you are defending for customers to be among the protected is not universal. So then how could a different customer be required to be among a particular class in order to want a legally and secularly benign image of Muhammad?

    • I am explaining the Equality Act – being gay is a protected characteristic from discrimination. The judge was satisfied the defendants knew he was gay. The judge mentioned getting the non Christian employee to do the icing or sub contracting the icing to another bakery. Their main point was that if the bakery was prepared to bake a “support heterosexual cake” then it was discriminatory not to bake the other.

      It should be noted reading the judgment, if the cake was meant to be shared with other gay people, even if purchaser had been heterosexual, the judge would still have held as discrimination. Also, they had agreed to bake the cake, but then changed their mind over the weekend.

      I am not defending the judgment but *explaining it* and the ramifications – including how the Equality Act may be interpretated. I don’t think a Muslim baker should be compelled to make hot cross buns, or a non Muslim butcher to stock halal produce, under the Equality Act.

      This judgment makes those a step closer, which is why I am against it. We should all be free in our religious opinions and not compelled to provide an additional service which counters it.

      I would love to live in a country where free speech would be seen as a virtue, so they would have baked it even though against their sentiments. That they would have refused to bake this cake for anyone to my mind suggests a bigoted view on gay marriage, but not a discriminatory one.

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