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Author Topic: The Gay Cake


kennet
Calcium
Posts: 21
The Gay Cake
on: December 10, 2016, 16:46

I know it's not exactly new news, but I didn't spot an existing discussion. This is about the recent "gay cake" court case where a Christian couple in Northern Ireland was found to be discriminating against a gay customer by not baking a cake decorated with a pro-gay message.

Now, I have no love of religious absurdity (obviously), but I must admit I am troubled by the verdict in this case. If the cake had been pre-baked and was already on sale then I could understand the judgement, as the discrimination would be clear. But in this case we are talking here about a contract to bake a particular future cake.

It seems to be that the fundamental principle here is personal autonomy to enter (or not) into a contract involving future work. Even as a baker, if I don't want to enter into a contract to supply work *for whatever reason* that that's up to me. To my mind the judgment seems to be saying, if you have a business offering to make cakes, you are obliged to enter into any and all cake-baking contracts that are offered. I can't understand how this decision can be fair and just.



Alcuin
Moderator
Posts: 1007
Re: The Gay Cake
on: December 10, 2016, 18:29

I'm inclined to agree but I'm unsure.

The argument is that you may not discriminate against people on the bases of race, gender or sexual orientation if you are in business today. The baker's action was clearly discriminatory.

Perhaps it is comparable to the car seat-belt law? That is arguably no longer necessary but it was important that wearing a seat belt became law 33 years ago. It has saved many lives but it could probably be dispensed with now. This is to use the law as a tool for public education. Similarly, it might be important to use the law to stop people discriminating against gays. It wouldn't be necessary if people had the "common sense" to just wear seat belts and stop discriminating unreasonably against each other.

Perhaps both the seat belt law and the laws against discrimination can infringe on what might be seen as people's individual rights or freedom of choice, but there is always a balance to be struck between the rights of the individual and the benefit to society as a whole.

Or maybe it is simply a matter of balancing how one baker feels (on the one hand) about having to bake a cake for a gay couple and (on the other) how gay couples feel about being effectively unable to use certain bakers and the general public feel about discrimination?



kennet
Calcium
Posts: 21
Re: The Gay Cake
on: December 11, 2016, 16:00

I would argue the baker was NOT discriminating against the (in this case, gay) person, he is simply refusing to enter into a contract to bake a particular cake design. Attributes of the customer are not relevant.

Suppose the customer had been straight but had been asking for exactly the same cake, perhaps on behalf of a gay friend. The baker would have refused to supply the cake on the same grounds - after all, it's the baking of that particular cake they are objecting to, not the customer who is asking for it. To my mind this demonstrates it's not discrimination against an individual, but rather, discrimination between specific contracts (i.e cake designs).



Alcuin
Moderator
Posts: 1007
Re: The Gay Cake
on: December 13, 2016, 08:58

Isn't offering a service to the general public entering into a contract (as you put it)?

He will bake a cake with a heterosexual couple's marriage but not if they're gay. How can that not be discrimination?

Nobody is suggesting that a baker is responsible for, or agrees with the sentiments expressed on a product.

Did he argue it wasn't discriminatory, or simply not against discrimination law and that doing it was against his "values" and they should take precedence?

If it is okay, I think people should probably be able to offer warning signs such as "no gay marriage cakes supplied", or "no Bar Mitzvah cakes" (religiously motivated child mutilation?), "no marriage cakes for divorcees" or whatever. Shouldn't bed and breakfast people be able to discriminate that way too? How about plumbers who feel uncomfortable in a gay couple's house?

Perhaps offers of services to the general public have to be for all members of the public, equally?



kennet
Calcium
Posts: 21
Re: The Gay Cake
on: December 14, 2016, 10:30

Quote from Alcuin on December 13, 2016, 08:58
Isn't offering a service to the general public entering into a contract (as you put it)?

Maybe technically yes, but the point I am making is there is a difference between (1) a product that is readily available and on sale to the general public (e.g. pre-baked cakes in the shop window) and (2) a contract to perform future work to create a specific cake. My argument is that it's up to the individual business owner to accept or reject contracts to supply the products of future work.

He will bake a cake with a heterosexual couple's marriage but not if they're gay. How can that not be discrimination?

Is not discrimination against a person, it's discrimination against a particular design cake design. The latter is fine even if the former is not.

Nobody is suggesting that a baker is responsible for, or agrees with the sentiments expressed on a product.

If you say the baker should have no right to refuse, and should just bake any cake requested, even if he disagrees with the sentiment expressed, then the logical conclusion would be he would have to bake any cake with any political message - even an "Islamic State" cake... or a "Legalise Paedophilia" cake.

If it is okay, I think people should probably be able to offer warning signs such as "no gay marriage cakes supplied", or "no Bar Mitzvah cakes" (religiously motivated child mutilation?), "no marriage cakes for divorcees" or whatever. Shouldn't bed and breakfast people be able to discriminate that way too? How about plumbers who feel uncomfortable in a gay couple's house?

It would certainly make sense to have a clause "Management reserves the right to refuse any cake design for any reason". I don't know if the lack of such a clause resulted in this verdict. But to me, such a clause is implicit and shouldn't really be necessary.

The other cases you mention (eg the B&B owner) are not analogous in my view, since they *would* be discriminatory against an individual rather than a mere design.

Perhaps offers of services to the general public have to be for all members of the public, equally?

I say the baker has done exactly that. He would refuse to bake the gay cake for ALL customers, regardless of sexual orientation, and therefore is treating all customers equally.



Alcuin
Moderator
Posts: 1007
Re: The Gay Cake
on: December 14, 2016, 18:26

I think you're missing both the aim and spirit of the legislation and not taking due note of the categaries, such as sexual orientation and gender.

"[One] argument is that it's up to the individual business owner to accept or reject contracts to supply the products of future work."
Exactly. As long as there is no discrimination against people on certain bases.

A sign saying "Management reserves the right to refuse any cake design for any reason" is legal but doesn't protect the owner from the laws of the land or diminish the rights of any member of the public.

"Is not discrimination against a person, it's discrimination against a particular design cake design. The latter is fine even if the former is not."
The cake design he objects to refers to the marriage of a Gay couple. That is bound to affect the person based on sexual orientation.

"If you say the baker should have no right to refuse, and should just bake any cake requested, even if he disagrees with the sentiment expressed, then the logical conclusion would be he would have to bake any cake with any political message - even an "Islamic State" cake... or a "Legalise Paedophilia" cake."
The law doesn't list Daesh supporters or paedophiles as groups against whom there must be no discrimination.

"I say the baker has [offered service to all members of the public equally]". The arguments you have presented here might appear to have undermined the position that the contract need not be accepted even if the effect of refusal is to discriminate against a group listed in the legislation.

If the B&B case isn't analogous, what about the plumber who feels uncomfortable in a gay couple's house simply because they're gay? Isn't he 'entering into a contract "technically"? Doesn't he have the same rights as the baker?

Maybe I'm being obtuse but the court decision sounds correct to me. If I have understood the contention correctly: it is the design that's objectionable and no person's equality rights are infringed by rejecting the contract.



kennet
Calcium
Posts: 21
Re: The Gay Cake
on: December 15, 2016, 12:16

Consider the following two scenarios:
1. gay person asks baker to bake a gay cake.
2. straight person asks baker to bake a gay cake.

Is it your judgement then, that in case 1 the baker must bake the cake, but in case 2 he needn't on the grounds that straight people are not a "special group" with extra protection under the law. If we follow the logic of the law as you have presented it, that seems to be the bizarre conclusion. The result is that the gay customer has more rights than the straight customer. Perhaps you are right and that *legally* how it's seen - effectively positive discrimination. In my view positive discrimination is still *morally* wrong though.

I would liken it to commissioning an artist to paint a picture. The artist can surely accept or refuse to paint based on the content of the picture. Whereas, if I understand your argument correctly, you are saying he can't refuse certain commissions for work if they are certain designs from certain protected groups.

You asked me about the plumber: presumably he would come and take a look at the job. He could then either provide a quote for the work or not according to his judgement. I would not compel people to give a reason if they don't want to take on a job. But if the plumber explicitly said, "I am not doing the work because you are gay", that ought NOT be allowed. But in that case, he is discrimination against the customer personally, not merely an idea or design.

But if the the plumber was hypothetically asked to create some sort of artistic installation out of his pipework that in some way represented homosexuality, then I would defend his right to refuse the contract. That situation, albeit unlikely, would be analogous to the baker.



Alcuin
Moderator
Posts: 1007
Re: The Gay Cake
on: December 16, 2016, 12:27

Quote from kennet on December 15, 2016, 12:16
Consider the following two scenarios:
1. gay person asks baker to bake a gay cake.
2. straight person asks baker to bake a gay cake.

Is it your judgement then, that in case 1 the baker must bake the cake, but in case 2 he needn't on the grounds that straight people are not a "special group" with extra protection under the law. If we follow the logic of the law as you have presented it, that seems to be the bizarre conclusion.

I didn't draw or indicate the conclusion you draw: that the baker could reject making the cake if it was requested by a heterosexual person. There might be a case to answer no matter who ordered the cake. The point is that the baker is discriminating on the grounds of sexual orientation. He rejects gay marriage and wishes to treat gay people differently from heterosexual people.

The cake is clearly intended to celebrate a gay marriage. Even if it were ordered by a heterosexual person the court might consider a case brought by the intended recipient, or anyone who found grounds for discrimination against the groups listed in the legislation. We seem to be disagreeing enough on the specific case. Perhaps we should steer clear of the hypothetical?

Quote from kennet on December 15, 2016, 12:16The result is that the gay customer has more rights than the straight customer. Perhaps you are right and that *legally* how it's seen - effectively positive discrimination. In my view positive discrimination is still *morally* wrong though.

No, the gay couple has a right to a marriage motif in their cake if the heterosexual customer can get one.

Quote from kennet on December 15, 2016, 12:16
I would liken it to commissioning an artist to paint a picture. The artist can surely accept or refuse to paint based on the content of the picture. Whereas, if I understand your argument correctly, you are saying he can't refuse certain commissions for work if they are certain designs from certain protected groups.

We are in a hypothetical case again which will greatly prolong this thread. I can only say that if the artist refused the commission on the basis that the image was of gay marriage he might fall foul of the legislation. That should be his problem, not gay people's problem.

Quote from kennet on December 15, 2016, 12:16
You asked me about the plumber: presumably he would come and take a look at the job. He could then either provide a quote for the work or not according to his judgement. I would not compel people to give a reason if they don't want to take on a job. But if the plumber explicitly said, "I am not doing the work because you are gay", that ought NOT be allowed. But in that case, he is discrimination against the customer personally, not merely an idea or design.

Perhaps we can agree then - he need give no reason for not taking the work.

Quote from kennet on December 15, 2016, 12:16
But if the the plumber was hypothetically asked to create some sort of artistic installation out of his pipework that in some way represented homosexuality, then I would defend his right to refuse the contract. That situation, albeit unlikely, would be analogous to the baker.

Too hypothetical for me! 🙂

I still think the problem you are having with the case is not understanding or not accepting the aim and spirit of the legislation. Anyone should be able to order a wedding cake from any baker. They should not be told 'only if the design is for a heterosexual (or white, or non-Jewish, or non-Muslim) customer'.

(Thanks for the calm, impersonal interaction and analysis here. Some folk get agitated if there isn't agreement).



kennet
Calcium
Posts: 21
Re: The Gay Cake
on: December 17, 2016, 15:47

Interesting. Then it seems to be that our difference of opinion lies in what is, or should be, covered by the law that prevents discrimination. We both agree that you can't discriminate against an individual on the basis of who that person is. But your argument, it seems me, extends this principle beyond that: to ideas or designs that may represent such a protected group of people. That is, because the cake represents a particular idea - in this case of gay marriage equality - that is deemed to be covered by the anti-discrimination law, independently of the customer making the request. It's this extension of the anti-discrimination law to ideas rather than individual customers, which is where we are different, I believe.

This seems worrying concept to me. It means, faced with a particular request for a design, the baker may or may not have the right to refuse, based on the *concept represented in the design*. This implies there are certain, state-sanctioned ideas or concepts that have special protection, one such being gay marriage. He can refuse the Islamic State cake because that's not a protected idea. But he can't refuse the Gay Marriage cake because that *is* a protected idea.

Most people may think that's OK on the face of it, because most people support gay marriage but most people don't support IS. But I don't like the idea of having a state-sanctioned list of "correct" and "incorrect" ideas, where some ideas get special legal protection. Although you don't like hypotheticals, surely you'd have to acknowledge that once you allow this concept of protected ideas to take root, there are potentially dangerous consequences for the freedom of expression and autonomy of the individual.

(It's also worth noting that gay marriage is not yet legal in Northern Ireland, which means this concept of "protected ideas" is being extended in this case to something which is not (yet) even legal!.)



Alcuin
Moderator
Posts: 1007
Re: The Gay Cake
on: December 18, 2016, 09:11

I didn't express myself well, so well done identifying where we differ. I agree but my perception of our difference differs from yours.

Quote from kennet on December 17, 2016, 15:47
...This seems worrying concept to me. It means, faced with a particular request for a design, the baker may or may not have the right to refuse, based on the *concept represented in the design*. This implies there are certain, state-sanctioned ideas or concepts that have special protection, one such being gay marriage. He can refuse the Islamic State cake because that's not a protected idea. But he can't refuse the Gay Marriage cake because that *is* a protected idea.
Most people may think that's OK...

I don't think that's okay.

The reason he can refuse the "Islamic State" design is because Da'esh aren’t a protected group.

The way I view it is that the legislation states that someone may not discriminate in employment or services to the public against specific groups. If a baker is willing to make a cake design for a heterosexual marriage, then he must make one for a gay marriage too. The individual in question said he opposes gay marriage and won't do the requested design on that basis. The effect of this, in this instance, is that gays who marry are treated differently to heterosexuals who marry.

So, the legislation protects the rights of gay people not to be treated differently to heterosexual couples, as intended. The point is not to protect ideas or concepts, nor to stop people expressing them. They cannot express them through illegal discrimination.

My understanding is the baker refused what everyone agreed was a perfectly reasonable design for a gay wedding cake. He did so because he said gay marriage was against his either principles or his ‘faith’. I would think it a little bizarre if such blatantly anti-gay actions weren’t covered by the legislation.

The State isn’t legislating about ideas as you perceive it. The State legislation is used to try to stop or limit discrimination being experienced by specific groups.

(It isn’t that I don’t like analogies but they don’t seem to be helping).



wheels5894
Calcium
Posts: 197
Re: The Gay Cake
on: December 18, 2016, 11:14

Maybe this discussion could be widened to include other things which involve discrimination. If a baker can turn down a contract to bake a cake without giving reasons, it means that anyone he doesn't like, people of colour, people whose religion is different (a big deal in Northern Ireland) or even refusing to serve people in wheelchairs. It leaves open a whole legion of people that maybe can't get the advertised service.

Now, sure, it is fine to turn down a contract for something a bakery can't manage because the bakery is too small or whatever, but to allow refusal to bake cakes for any or all of the groups I mention would hardly be acceptable behaviour in our, hopefully, inclusive society. After all, it has taken decades for campaigners to get access to trains and buses for wheelchair users and if a baker can refuse on religious grounds it opens the door to all sorts of other people turning down reasonable requests that could leave any disadvantaged groups out in the cold.

No, I agree with the courts that if one is in business selling to the public one has to take all comers else no one can know if they can get the service they want.



kennet
Calcium
Posts: 21
Re: The Gay Cake
on: December 18, 2016, 17:06

My understanding of this case was that the baker argued to be discriminating against a the *idea* of gay marriage, not the individual customer. Part of their case was that they were indeed willing to serve the customer, but not to produce that specific design.

If a baker is willing to make a cake design for a heterosexual marriage, then he must make one for a gay marriage too.

A marriage - be it straight or gay - is an idea, or concept, not an individual. Therefore, this argument you have made does indeed seem to extend the anti-discrimination legislation to ideas.

There is a clear difference between saying:
1. "I refuse to bake a cake because the customer is gay".
2. "I refuse to bake a cake because it represents a particular idea I disagree with".

In my view, the first should not allowed but the second should be. It may seem like a subtle distinction, but I think it's necessary to avoid having a situation where ideas start to acquire state-sanctioned legal protection, rather than individuals.

In fact, by saying "Support gay marriage", the cake's design meant it contained a political message. You may or may not agree with that message. Most people do agree with it to be fair. But it seems unavoidable that this case results in the situation where certain ideas, or designs representing certain ideas, have special state-sanctioned protection.

I guess I'm in a minority in the atheist community as I noticed the NSS supports the judgement too. Interestingly, though, I have noticed Peter Tatchell of all people takes the same view as me.

I guess this is one of those unbridgeable divides, and perhaps I'm not going to convince anyone on the other side of the argument, but it's an interesting case to discuss nonetheless.

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