The Great Northern Ireland Bake-off

The Equality Commission of Northern Ireland is threatening to take action against a bakery that refused to bake a Sesame Street themed cake with a pro-gay marriage slogan. This has the potential to turn into one of those conscience v equality debates that are always so uplifting and productive and a catholic priest has already threatened to disengage from groups representing the gay community unless they acknowledge the bakery’s right to freedom of expression.

This is the sort of story where your initial reaction can be conditioned by your political / religious / philosophical standpoint. I want to get away from that and take as objective a look as possible  at whether what has happened can actually be discrimination.

So at the outset I should say that I am very much in favour of equal marriage. I have no religious affiliation, but I am a big fan of Sesame street and I think that Bert and Ernie make a lovely couple. I know the programme’s makers have rubbished the idea that they have any sort of sexual relationship, and it seems to me that Ernie is more interested in his rubber duckie than Bert = but I for one would be delighted if they decided to tie the knot.

So in the argument between a bakery and  customer over the decorating a a cake so that it has a pro-gay marriage message, all my natural sympathies are with the customer. But that does not mean that what the bakery did was illegal. The Equality Commission for Northern Ireland however seem convinced that it is – so lets try to pick that apart.

Is it discriminatory for the bakery to refuse to make this cake?

If a baker refuses to bake a cake for a gay customer then of course that is direct discrimination on the grounds of sexual orientation – but I don’t see any suggestion of that here. The baker would refuse to bake this cake whatever the sexual orientation of the customer. The more subtle question is whether the refusal to bake the cake can still be seen as being on the ‘grounds of’ sexual orientation in some wider sense. But how can it be? The baker’s objection is to the decoration of the cake and the decoration is not specifically about sexual orientation. An objection to gay marriage is not in itself an objection to sexual orientation. I just don’t see how refusing to bake this cake in the circumstances described can amount to direct discrimination on the grounds of sexual orientation.

For completeness we should also consider indirect discrimination. But I really think this isn’t an indirect discrimination sort of case. Nevertheless suppose we say that the baker is applying a “provision criterion or practice” of refusing to make cakes promoting gay marriage. Does that cause a particular disadvantage to gay people? Unfortunately I have no statistical data on how many gay people are in the market for cakes decorated with a pro-gay marriage design. I suspect that even among the more politically active sections of the gay community are not greatly disadvantaged by having a limited choice of baker when they want to order cakes decorated in this way.

Even if you could show the requisite disadvantage there would then be the question of justification. Does the baker have a legitimate aim in not baking the cake? I think being true to their religious principles probably fits the bill. As for proportionality we weight the discriminatory impact against the needs of the baker to achieve that aim. I think the fact that they were able to get the cake from a different baker helps show that the disadvantage was not that great. I would think the justification argument would stand a good chance.

Political belief in Northern Ireland

That covers sexual orientation discrimination – but we must also consider discrimination based on political belief. In Northern Ireland this is covered by the Fair Employment and Treatment Order from 1998. Note that this covers religious belief and political belief – we do not have to worry about whether a belief is ‘philosophical’ as we do in GB.

Support for gay marriage is certainly a political opinion, but the baker’s refusal to make the cake was not on the grounds of the political opinion of the customer or any other person. The baker simply refused to make a product that expressed a political opinion he strongly disagreed with.  Is that enough? I generally only argue human rights as a last resort, but surely there is a freedom of expression point here?

This is not like the Bull v Hall  cases where hotel owners refused to allow gay couples to occupy rooms available to the public at large.  In this case a business owner is simply refusing to make a particular product that he finds distasteful. Surely he must be allowed to do that?

I accept of course that we need to bear in mind the different context applying to political belief in Northern Ireland. I don’t hold myself out as an expert on the Fair Employment and Treatment regime, so I pose the following question quite genuinely – could a printer from a nationalist background refuse to print union jack posters with the slogan “God Save the Queen”? If anyone knows whether this sort of issue has been dealt with by previous case law in Northern Ireland, I’d be really interested to hear about it.

If the issue of whether you can force a service provider to produce something conflicting with its religious beliefs hasn’t been dealt with before, then I’m not sure that the Bert and Ernie cake is quite the test case I would go for.

Not every bad thing has to be unlawful

On the whole however, I think that any legal action against the bakery faces some serious obstacles. So why is the Equality Commission for Northern Ireland coming on so strong? It seems they have written a detailed letter to the bakery setting out the basis for their claim. I have not seen that – though I would certainly like to.

I do not dismiss any discrimination lightly. I imagine that it was very upsetting for these customers to have been turned away when they tried to get their cake made. I am on their side and strongly disagree with the decision the baker took. But just because I think the baker was wrong does not mean that what they did amounted to discrimination. On balance I think I would advise the Commission to let this one go.

This post was brought to you today by the letters N and I – and by the number 2.

About Darren Newman

Employment law consultant, trainer, writer and anorak
This entry was posted in Fair Employment, Religion in the workplace, Sexual Orientation and tagged , , , , . Bookmark the permalink.

7 Responses to The Great Northern Ireland Bake-off

  1. Paul Ball says:

    Very good, as ever Darren.

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  2. Michael Reed says:

    I’m not sure there is as much difference between the cake case and the Bull v Hall case as you do.

    Bull v Hall seems to me directly on point. I’m sure that the couple involved could have found another B&B — in fact, if I remember the facts right they did after being refused the room. But I don’t think it can be an answer to a discrimination claim that there are other businesses offering the same service that don’t discriminate.

    I do see that there might be an issue around whether refusing to bake the cake was ‘because of’ sexual orientation. But I think there’s a very good chance of succeeding on the same basis as in Bull v Hall — that the refusal to bake the case was sufficiently closely related to the sexual orientation of the customer as to be inseparable from it. In the same way, I’d expect a refusal to bake a cake featuring a mixed-race couple would be race discrimination.

    I’m not sure that there is a freedom of expression issue — because it seems to me this isn’t about the bakers right to express their view, so much as not to assist someone else in expressing their’s. But there clearly is a freedom of religion issue. And discrimination law does interfere with your freedom of religion, while you’re running a public business. I think that’s the right place to put the balance between equality and freedom of religion — but obviously there’s an argument the other way.

    • I think where we differ the most is that I don’t see such a strong link between sexual orientation per se and the slogan on a cake promoting gay marriage. Plenty of people who are not gay support that and campaign for it. For all I know, there may be many gay people opposing it. Objecting to a cake showing a mixed-race couple could only be an objection to race of the people depicted on it, which would be a much stronger link. if the cake simply showed two men holding hands, then I think my view might be different.

      In Bull v Hall the issue was the identity of the customer and theSC held that but for the statutory equivalence of civil partnership and marriage the discrimination would have been indirect rather than direct. I agree that the fact that you can find a cake somewhere else can’t stop one refusal being discrimination – but I don’t see why it can’t go in the balance in justification as it is relevant to the extent of the disadvantage.

      To be really picky, the test is whether the discrimination is ‘on the grounds of’ rather than ‘because of’ as the NI legislation is older than the Equality Act 2010. I don’t think that makes a difference but you never know.

      I am more open minded about the Fair Employment and Treatment point. My understanding of the NI situation is that it strives for neutrality and curtails the display of material that might offend the members of the other community. I seem to recall that the display of a portrait of the Queen, for example, has been held to amount to discrimination based on religion and belief. If a customer can require a service provider to participate in a political statement that the service provider opposes, I’m not sure that sits easily with the scheme of the legislation. Hopefully someone who actually knows how things work in Northern Ireland can read this and add a comment.

      • Michael Reed says:

        Ahh. I think I’d got my facts crossed. For some reason I’d thought / assumed that the cake was for a particular gay couple’s wedding. Given that it was a general statement of support to be part of Belfast Pride, I can see that the connection is more remote. But I still tend to think that it’s enough (subject to the Fair Employment and Treatment point, which I know nothing about!) I guess we’ll find out.

        I was about to say that I think it’s hard to deploy the ‘there are other places to get a cake’ argument into justification. But having mentally reversed the facts, I’d certainly want to run a ‘This is the only widget shop in 100 miles’ argument as part of justification the other way, so I think it must be a relevant factor — if something of a slippery slope.

  3. James Medhurst says:

    Michael, Darren

    This is an interesting case in many ways but what it is not is a case about balancing equality and freedom of religion. To see why, let us turn the tables. Imagine a situation in which a Christian orders a cake which says something like “Belfast Christians Against Gay Marriage” and a bakery run by a gay owner refuses to make it. It seems to me that the situation is completely symmetrical. If the gay customer wins the Bert and Ernie case, the Christian wins the anti-gay marriage case and vice versa – if the gay customer loses this case, the Christian would lose his case as well.

    This is not a conflict between gay rights and religious rights per se and it is not about which right trumps the other. It is really a case about whether freedom of expression lies in the hands of the person ordering the cake or the person making it. Is the baker like Facebook, which would be criticised if it censored posts on political grounds or it is like, say, the Guardian or the Daily Mail, which have complete editorial freedom to only give coverage to a limited range of viewpoints?

    My feeling is that freedom of expression is best served by putting it in the hands of the purchaser of the cake, simply on the grounds of inequality of power. As our free speech laws are rooted in the activities of pamphleteers, I think that Darren’s comparison with printers is telling. In the days before the internet, think how democracy would have been harmed if printers had been censors.

    Obviously, it would be different if the wording of the cake was offensive to the owners in some way.

  4. James Medhurst says:

    A couple of interesting things from the ECNI website:

    The guidance says that it would be discrimination if “The owner of a news agency shop refuses to order and stock a catholic newspaper when requested to do so by a customer.”

    See also this case about a Celtic shirt:

    Click to access Greg-Mulholland-v-Lifestyle-Sports-and-Leisure-Ltd-February-2013-Religious-Political.pdf

  5. Pingback: Can a cake even BE gay? | A Range of Reasonable Responses

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