The ‘Gay Cake’ ruling
Thanks to Peter Ould for this guest post on the judgement in the Ashers Bakers instance:
The sentence on the private case in Northern Ireland betwixt Gareth Lee (from Queerspace) and Ashers Bakers has been delivered and it's an accented aspersion.
Some groundwork offset. This individual case (not a criminal case so any talk of the defendants beingness found "guilty" is incorrect) centres around the refusal of Ashers Bakers to bake and decorate a cake with the slogan "Support Gay Marriage". The plaintiff, who had previously bought baked items at Ashers (and this will become relevant later) placed the lodge initially on the 9th of May, just but came in with the actual design on the 12th. Information technology was at this betoken the order was refused. The plaintiff claimed that he had been discriminated against on the grounds of his support for gay spousal relationship and his sexuality. In their defense force, the bakers claimed that they were unaware of the plaintiff's sexuality and that the conclusion to turn down the order was based solely on the political campaign that was involved (to legalise gay marriage in Northern Ireland).
None of this is disputed. What I now desire to do is focus on some key paragraphs in the judge's ruling and then to add together one more reflection around the nature of defense in this and like cases.
The first bespeak in the ruling where the gauge makes a judgement is paragraph 39. Hither Judge Brownlie writes,
I find, on the evidence before me, that the Defendants did take the knowledge or perception that the Plaintiff was gay and /or associated with others who are gay. The reasons for this finding are that the Defendants must have known that the Plaintiff supported gay marriage and/or associated with others who supported gay wedlock equally this was a block for a special upshot the Plaintiff was attending; it was known to the third Defendant that the Plaintiff was a member of a minor volunteer group; he wanted his ain graphics on the cake; those graphics included 'support gay marriage' together with a reference to 'QueerSpace' and the 3rd Defendant was aware of the ongoing debate on aforementioned-sex marriage. Furthermore, although from her ain show she said that she didn't think "mayhap nosotros have to practise information technology" [meaning complete the gild], it is clear when she discussed the issue with her son on the Sunday, she mentioned that there may be litigation.
I agree with the judge hither – it is at least reasonable that the defendants might have suspected that the plaintiff was gay. That said, none of what follows is necessarily contingent – just considering I know (or presume) that someone is gay, doesn't necessitate that I will discriminate on that basis.
The side by side paragraph that requires comment is paragraph 42.
In applying the reasoning from the authorities cited, it is my view that, if a comparator is required, the right comparator is a heterosexual person placing an order for a cake with the graphics either "Back up Marriage" or "Back up Heterosexual Union."
What is required is proof of a factual matrix of less favourable treatment on the footing of sexual orientation and non the motive. I regard the criterion to be "support for aforementioned sex matrimony" which is indissociable from sexual orientation. There is likewise an verbal correspondence betwixt the advantage conferred and the disadvantage imposed in supporting ane and non the other.
This ruling beggars belief. Is the judge seriously suggesting that all gay people support gay marriage? Is back up for aforementioned sex marriage really indissociable from sexual orientation? This seems to be an assertion that is demonstrably untrue in that in that location are enough of LGB people who do not support the introduction of gay matrimony. This argument is used to turn down the comparison that Ashers would have refused the order if placed by a "directly" person only it seems specious at all-time. Conspicuously there are grounds for entreatment on the basis of a basic point of information, that sexual orientation and support for same-sex matrimony are not indissociable at all.
At present we plow to paragraph 43,
My finding is that the Defendants cancelled this order equally they oppose same sexual practice marriage for the reason that they regard it equally sinful and contrary to their genuinely held religious behavior. Same sex marriage is inextricably linked to sexual relations between same sex couples which is a spousal relationship of persons having a particular sexual orientation. The Plaintiff did non share the particular religious and political opinion which confines marriage to heterosexual orientation.
I discussed this point on previous rulings in this expanse. If same sex union is by its nature a wedlock of people having a particular sexual orientation, does that mean that other sexual practice marriage is as well by its nature a wedlock of people with a detail sexual orientation (namely heterosexuality)? The judge seems to think so. If nosotros tin can find numerous examples of other sex activity marriages betwixt couples where 1 or even both partners accept a homosexual orientation, does the whole premise that same-sexual practice marriage is a "gay affair" also fall apart? And annotation, there is goose egg wrong in a ruling that argues that same-sexual activity marriage would predominantly appeal to those of a homosexual orientation, simply that is non the same as saying that it is an institution only entered into by those of a homosexual orientation (and vice versa for other sex matrimony). This ruling seems to go across previous judgements that have taken the "reasonable to presume" statement and instead infers a direct and exclusive link between sexual orientation and union (other sexual activity and same sex activity). Equally to a higher place with paragraph 42, the judge seems to consider a point of fact that all those of a homosexual orientation desire aforementioned sexual activity, not other sex activity wedlock.
Furthermore, the statement "Same sexual activity marriage is inextricably linked to sexual relations between same sexual practice couples which is a union of persons having a particular sexual orientation" makes absolutely no sense in the Northern Ireland context. In the Province aforementioned sex marriage is not legal and proposals to make it so have been defeated three times in Stormont. Same sex matrimony does not be in Northern Ireland. To fence that a view of supporting it or non is grounds for discrimination is tantamount to the judge proverb that aforementioned sex activity marriage should be legal in the Province. Given that it is not legal, why should this proposal to modify the law exist given any preference in the courts over any other proposed legislation? The ruling reads virtually as though aforementioned sex marriage is legal in Northern Ireland.
One might even suggest (as someone has privately to me this afternoon) that this interpretation of the law and the test the approximate applies in paragraphs 42 and 43 would make it illegal to vote against same sex marriage! Certainly this is the kind of thinking, this test, that has driven judicial activism in same sex marriage in the U.s..
It's also worth a quick diversion here into the globe of the Church building of England. At that place are some that contend that clergy who enter into a aforementioned sex marriage are not necessarily entering a sexual union and therefore non undermining the Church'due south doctrine of sexual activity and marriage. Clearly in this case in Northern Ireland assumes that union is a sexual union and 1 predicated in part on sexual want. One cannot support this ruling and yet argue that clergy inbound same sex marriages cannot be presumed to be in a sexual union. That would be, forgive the pun, having i's block and eating it.
So far we have seen that the basis for a merits of direct discrimination in this ruling is based in an supposition of the plaintiff'southward sexuality based upon his support for same sex marriage. The "indissociable" link between support for same sex marriage and sexual orientation is key to the rejection of the defence that Ashers Bakers would have turned downward a similar request from a directly customer. It should exist understood that the ruling hinges on this – remove the "indissociable" link and you lot remove the justification for rejecting the "the sexuality of the person placing the gild was irrelevant" defense.
The ruling however then turns to whether the order could have been rejected but on the basis of information technology being a political slogan – "Support Gay Spousal relationship". Here we enter even more disturbing territory in paragraphs 66 and 67.
[66] Have the Defendants directly discriminated against the Plaintiff on the basis of religious belief and/or political opinion opposite to Commodity 3(2) of the 1998 Society? I find that they take. Applying the reasoning in Gill 5 NICEM, the 2nd and third Defendants disagreed with the religious belief and political opinion held by the Plaintiff with regard to a change in the law to permit gay wedlock and, appropriately, past their refusal to provide the services sought, treated the Plaintiff less favourably opposite to the police force. If the Plaintiff had chosen graphics which said "back up heterosexual marriage" or "support marriage" or if a heterosexual had ordered a cake with graphics "support heterosexual union" I am satisfied that the Defendants would take completed the social club and would accept had every right to do then. It is for the reason that the Defendants objected to the give-and-take 'gay' equally they are totally opposed to same-sexual activity marriage which they regard as sinful that they refused the order.
[67] If I had been persuaded by the Defendants submission that they were not aware of the Plaintiff'due south religious belief and/or political opinion or the religious beliefs and political opinion of those with whom he associates, I would in any result accept found that the Defendants discriminated against the Plaintiff and treated him less favourably on the grounds of their own religious beliefs and political opinion – see government cited in para [50] -[52] – the' Ryder' case as applied in 'Gill". The Defendants have accepted that the guild was cancelled because of their religious behavior because they are opposed to a alter in the constabulary regarding gay marriage which they regard equally sinful.
The instance Gill cited refers to 1998 Fair Employment and Handling Lodge in Northern Ireland which outlaws bigotry against someone on the basis of their political party or ideology. The reason for this in the Northern Ireland context is clear – y'all need to protect Unionists and Republicans from beingness refused goods and services simply on the footing of their political loyalty (and rightly and so). But is it a right application of the Gild to suggest that any provider of any publication or artwork of any kind must fulfil whatsoever political slogan they are asked to produce? In the remainder of the United Kingdom this is non the example – a printer for example can refuse to produce material for a party (due south)he opposes. In Northern Ireland all the same that is not the case.
Is this blanket ban on refusing to produce political messaging you don't agree with actually adept police? Do we really want a world where an Afro-Caribbean printer is forced to produce posters with the slogan "Repeal the Race Relations Act Now"? Should a baker owned by a gay couple exist forced to brand "traditional matrimony" cupcakes?
The estimate'due south application of department three(2) of the 1998 Order can have no other interpretation. If this ruling is not appealed and overturned then , when cited in future cases, it means that the mere holding of any political opinion, however egregious that stance is ("Enslave all Black People At present"), entitles a person or organisation to demand of any other organisation that they produce or publish fabric supporting that cause. I cannot in response argue that the cause being promoted is offensive and contrary to current law and that is why it is refused – how would the courtroom gauge betwixt acceptable and unacceptable political opinions? Would "Repeal the Equality Act" get an intrinsically illegal statement? What does that say about the power of whatsoever legislature not to exist spring by previous decisions of that legislature? What kind of constitutional nightmare is that?
The proverb "be careful what you wish for, you lot may just get information technology" is apt in this instance. If the judge has incorrectly interpreted the law in Northern Republic of ireland then the interpretation needs to be overturned on appeal. If the gauge has correctly interpreted the police force then the Northern Irish law is, my friends, an ass of colossal proportions and some grade of reasonable adaptation amendment needs to be enacted sooner rather than later, for without such an accommodation the consequences for any provider of appurtenances and services in Northern Ireland are obvious.
One final idea. The defense publicity effectually this case has centred on the "right" of the bakers to discriminate on the basis of their religious beliefs – Paragraphs xiv and 15 lay out the religious basis for the refusal to bake and decorate the cake. In reality, this case has nothing to do with religious conventionalities and everything to practise with political beliefs and so the use of religious belief in the support of the defendants is counter-productive. That the political belief ("no to same sex matrimony") is predicated on a religious foundation is irrelevant to the determination not to provide the goods and services – an atheist opposed to same sex marriage might very well accept made the same decision on political grounds.
That being the case, why was this case framed in a "organized religion vs sexuality" basis? There seems an alarming trend with the Christian Constitute and Christian Concern to get this alien rights paradigm in the public imagination, even at the cost of justice for their clients. Wouldn't it be better to only defend their clients with the best possible statement, rather than a political defense force attempting to heighten consciousness of "competing rights", especially in a example where i of those competing rights (religion) is utterly irrelevant to the issue at mitt?
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