Tuesday, February 2, 2016

The gay cake row


In May 2014 Ashers Bakery in Northern Ireland cancelled an order placed by a gay customer because they didn't want to decorate a cake with the slogan "support gay marriage" due to their Christian religious beliefs. In May 2015 Belfast County Court ruled that the owners of the bakery were guilty of discrimination and fined them £500. In February 2016 an appeal against the ruling will be heard in the Court of Appeals.

In this article I'm going to examine some of the fundamentally important ethical issues at stake, in what may seem to many to be quite a trivial legal case. 

Freedom of conscience

Shortly before the Appeal Court case Peter Tatchell (one of the most high profile gay rights activists in the UK) wrote an article explaining his change of mind over the gay cake row. In the article he explained how he had previously supported the decision to find the bakery guilty of discrimination, but upon further reflection he'd come to realise that the ruling has some very illiberal implications.

The first thing to say is that I applaud Peter Tatchell for having the courage to publicly admit that he'd made an error of judgement. It takes a measure of bravery for an individual to publicly change their mind about something, and in so doing admit that they've been guilty of poor reasoning. Peter Tatchell has proven time and again that he has courage in his convictions (like when he took on Robert Mugabe's security guards), but in my mind it takes even more courage to admit that one of your previously held convictions was wrong and to change it in light of subsequent contemplation.


Tatchell's conclusion was that "it is an infringement of freedom to require businesses to aid the promotion of ideas to which they conscientiously object. Discrimination against people should be unlawful, but not against ideas".

I wholeheartedly agree with his revised opinion and I'm going to present some examples of why I believe that he is right to say that people should have the legal right to consciously object to replicating language or slogans with which they disagree.


Hypotheticals

Hypothetical examples are useful for considering the validity and the potential impact of legal rulings. Anyone who supports the Belfast County Court judgement that refusing to bake the cake was discrimination, yet tries to oppose the use of hypothetical examples is treading on very thin ice, given that the Belfast County Court ruling itself relied on the hyporthetical example of a non-gay customer ordering a cake with a non-gay slogan.

The non-gay customer

The Belfast County Court ruling hinged on the hypothetical case of a non-gay cake customer ordering a cake to be decorated with the slogan "support heterosexual marriage". The court concluded that if the bakery would fulfil that order, then they are guilty of discriminating against a gay customer if they refuse to fulfil an order for a "support gay marriage" cake.

In my view this is clearly a faulty example because of the way the slogan on the cake was changed, which altered the whole dynamic of the comparison. It is perfectly possible for a non-gay person to order a "support gay marriage cake" (I'm not gay, I strongly support gay marriage, the only stumbling block is that I'd rather buy my gay friends a couple of beers than a cake with a political slogan on it!). I can see absolutely no legitimate justification for switching the requested slogan and fundamentally changing the nature of the service provided in the hypothetical case.

If only the sexual orientation of the customer is changed and not the cake message, the decision of the baker to not fulfil the order remains the same whoever might order it. The only way in which it can be made to seem that the baker is discriminating against the gay customer is if the slogan on the cake is changed too.

Switching the slogan completely changes the dynamic 
of the comparison because it changes the form of the question from:
Would the bakery render service a for either customer x or customer y
to 
Would the bakery render service a for customer x and service b for customer y?
Switching the wording fundamentally changes the question from "would the bakery render a service they object to for either party?" Into "would the bakery provide a service they object to for one party and a service that they don't object to for another party?"

To me the switching of the message in the hypothetical example was clearly a modification made with the express intention of generating a desired outcome (a guilty verdict).

If it's only by modifying the service provided that any discrimination can be proven, then the ruling is blatantly flawed. If discrimination against the person is to be proven, surely it has to be shown that they were denied a specific service that others have received, not denied a fundamentally different service to what others might receive?


In my view switching the slogan is a clear example of rigging the hypothesis in order to get the desired outcome, and it was done because it was simply impossible to get a guilty verdict if the slogan was not switched.

The Gay baker

Switching the customer (without tampering with the cake slogan) is the key to understanding the crucial legal objection to the ruling. Switching the baker is much more useful for considering the legal ramifications if the appeal against the Belfast County Court is rejected and the principle of the law continues to hold that it is unlawful to conscientiously object to rendering certain statements.

Imagine a gay baker is asked by a religious fanatic to decorate a cake with the slogan "gay love is sinful". Such a statement is obviously distasteful to people who believe in equality, but it's not an unlawful thing to say, so if the Belfast gay cake ruling is allowed to stand, the gay baker must fulfil the order, otherwise he's guilty of religious discrimination. After all, the Belfast County Court ruling establishes the precedent that the meaning of the slogan can be altered to prove discrimination. If the gay baker is prepared to bake a cake that says "gay love is not a sin" for a non-religious customer, then it's discriminatory for him to refuse to bake a "gay love is a sin" cake for a religious fanatic.

In this light the switching of the slogan looks preposterous, and very few people would continue to argue from the slogan-switching standpoint, because the tactic can clearly be used to justify legally compelling a gay baker to fulfil an order for an anti-gay cake.

If you do feel the gay baker should be compelled to fulfil the order for the anti-gay cake it's possible to continue supporting the Belfast County Court ruling that the religious baker should be compelled to fulfil the order for the gay cake. Otherwise, you should now be seriously questioning the Belfast County Court ruling.

If you think it's preposterous to legally compel a gay baker fulfil an order for an anti-gay cake, yet still support the Belfast County Court judgement, it's pretty clear that you don't really care about the logic or the complex legal ramifications of the case, you're simply basing your judgement on your (understandable) sympathy for the gay customer who had his cake order cancelled.

Free speech

If the Belfast County Court ruling is allowed to stand there are clearly lots of legal ramifications that go well beyond the gay rights issue. If the legal precedent is set that service providers can be compelled by customers to render slogans with which they morally disagree, it severely infringes our freedom to conscientiously object to rendering statements that we find objectionable, unethical or repulsive.

The principle of free speech is that we should be free to say whatever we like, as long as it is not prohibited by the law of the land (libel, false advertising, conspiracy, incitement to racial hatred, incitement to terrorism, rape threats etc). In my view the right to free speech also includes the right not to be compelled to say things against our will, and that this right to not say what we disagree with is just as important as our right to say what we do agree with.


The atheist baker and other examples

Should the atheist baker be compelled against their own will to decorate a cake saying "God exists" for a religious customer? If the Belfast County Court ruling is allowed to stand, then they should be made to fulfil the order on the grounds that the service would be provided if the customer is switched to a fellow atheist and the cake message switched to "God doesn't exist".

Should the feminist baker be compelled against their own will to decorate a cake saying "Female genital mutilation is good" for a customer who adheres to a religion that continues with such barbaric practices? If the Belfast County Court ruling is allowed to stand, then they should be made 
to fulfil the order on the grounds that the service would be provided if the customer is switched to a civilised person and the cake message switched to "Female genital mutilation is an abomination".

Should the baker who supports the UK judicial system be compelled against their own will to decorate a cake saying "Sharia law for the UK" for an Islamist fanatic customer? If the Belfast County Court ruling is allowed to stand, then they should be made to fulfil the order on the grounds that the service would be provided if the customer is switched to a fellow supporter of the UK judicial system and the cake message switched to "Stop Sharia law in the UK".

It's clear that if the tactic of switching the message (fundamentally changing the requested service) is allowed, all kinds of utterly perverse judgements become possible.

In my view everyone should have the right to refuse to say/write/render slogans or messages with which they personally disagree. If they wouldn't render that specific message for anybody they are not guilty of discrimination against the client. Demonstrating that the defendant would render a different message for a different client does not prove that they discriminated against the first client at all, it proves that they have discriminated against the message they've been asked to render.

If the Belfast County Court ruling is allowed to stand it sets a woeful precedent that British people do not have the right to conscientiously refuse to communicate certain messages, no matter how much they disagree with them.


Publishing

If the Belfast County Court ruling is allowed to stand then it has serious ramifications for the publishing industry.

Imagine that the humanist owner of a small copy editing company is asked to copy edit a pamphlet calling for the introduction of strict Sharia law in the UK, and praising practices like beheadings, amputations, crucifictions, whipping and stoning. Should the owner have the right to refuse to fulfil the order out of objection to the contents of the leaflet? There is no law in the UK saying that it's a criminal offence to promote Sharia law or praise the kind of barbarity that is routine in places like Saudi Arabia. So should the copy editor be charged with religious discrimination if he refuses to participate in promoting ideas that he finds utterly repulsive?

If the If the Belfast County Court ruling is allowed to stand then the humanist copy editor should be compelled to copy edit the Sharia law leaflet, given that the service would be provided if the customer was switched to a fellow humanist and the pamphlet switched to one calling for humanist reforms to the UK judicial system and praising humanist practices.


The same scenario could be played out for printers being asked to print distasteful but not unlawful material, and also for publishers and editors who are asked to publish objectionable but not unlawful content.

Should publishing houses, newspapers, magazines, fanzines or websites be compelled to publish content which goes against their ethics on the grounds that they'd publish completely different content for different writers?

In my view it's preposterous to claim that anybody should be legally compelled to replicate slogans or messages with which they disagree, and it should only ever be considered a case of discrimination against the person (rather than the words) if it can be shown that they would replicate the exact same message (provide the same service) for other clients.

Conclusions

Firstly I fundamentally object to the idea of anyone being compelled to replicate messages with which they disagree. Everyone should have the right to conscientiously object to saying/writing/rendering messages that they don't agree with. Even criminals who are accused of the most heinous of crimes have the right to silence.

When it comes to freedom of speech I believe the right to not say what we don't want to say is just as important as the right to say what we do want to say.


Secondly I strongly object to the tactic of switching slogans to "prove" discrimination against the person. Switching slogans fundamentally changes the service provided. Switching slogans does not prove discrimination against the person, it only proves discrimination against the words, which is not, and should never be considered a crime.

If the substitution of alternate phrases to prove discrimination is allowed, then that's an awfully slippery slope leading to situations in which all manner of people and organisations could be compelled into replicating disagreeable content by threat of legal sanction.

Lastly I would like to reiterate that I strongly support gay equality and find religious bigotry utterly appalling. However, the role of the law is not to pick a side and manufacture a judgement in their favour, regardless of the legal repercussions, it is to establish whether an existing law was broken. In my view the deliberate switching of the cake slogans was a crystal clear example of picking a side and manufacturing a verdict regardless of the legal repercussions.

I'm hoping to see a sensible well considered judgement 
from the Court of Appeals to overturn the Belfast County Court ruling, but I'm definitely not counting on it.



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