Supreme Court & the case of the SSM cake

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Comments

  • @mousethief I disagree. Conviction of the self-righteousness of one's cause doesn't somehow make it morally OK deliberately to set someone up so as to give yourself a claim for compo against them, however worthy you think your cause is, and however reprehensible you might think they are or what they stand for is.

    Going to a more fundamental level, if an area of law is supposed to be designed to compensate one person for suffering the consequences of a wrong done to them, that is not the case if the person claiming to be a victim has deliberately chosen to make themselves one. They have not been wronged. It is a perversion of the legal system for them to be able to use the law to extract their pound of flesh - whichever way your sympathies lie on the abstract principle they claim to be avenging.
  • Enoch wrote: »
    @mousethief I disagree. Conviction of the self-righteousness of one's cause doesn't somehow make it morally OK deliberately to set someone up so as to give yourself a claim for compo against them, however worthy you think your cause is, and however reprehensible you might think they are or what they stand for is.
    Never said it did. Please read what I wrote, not what you think I wrote.
  • Gee DGee D Shipmate
    edited September 2018
    Crœsos wrote: »
    Possible, but legally irrelevant. Activists have been using similar tactics to "provoke" discrimination since the days of lunch counter sit-ins. What matters in these cases is whether the actions of the establishment refusing service are contrary to law, which is very much the case here.

    It may very well be legally relevant in the assessment of any damages sought. To the extent that money can be awarded for injured feelings, the injury to the feelings of the gay couple in the wedding cake example would probably have been worse if the refusal came out of the blue. Ms Scardina's feelings, she quite likely having chosen this baker in order to have her request denied, were probably much less affected.
  • Enoch wrote: »
    Going to a more fundamental level, if an area of law is supposed to be designed to compensate one person for suffering the consequences of a wrong done to them, that is not the case if the person claiming to be a victim has deliberately chosen to make themselves one. They have not been wronged.

    I'm having trouble looking at this photo and concluding that the people sitting at that counter "have not been wronged" because they're deliberately breaking the Whites Only policy of Woolworths. Could you expand a little more on the "they were asking for it" theory of legal justification?
    Gee D wrote: »
    It may very well be legally relevant in the assessment of any damages sought. To the extent that money can be awarded for injured feelings, the injury to the feelings of the gay couple in the wedding cake example would probably have been worse if the refusal came out of the blue. Ms Scardina's feelings, she quite likely having chosen this baker in order to have her request denied, were probably much less affected.

    First off, I've not been able to find any details of the Colorado Commission's ruling on behalf of Ms. Scardina and whether it involved any financial award to her personally. Can you provide a link to back up your assertion?

    Second, if the state cannot enforce anti-discrimination laws through financial penalties, what enforcement mechanism would you consider appropriate? Or is the whole idea of enforcing anti-discrimination laws beyond the pale?
  • Crœsos wrote: »
    Enoch wrote: »
    Going to a more fundamental level, if an area of law is supposed to be designed to compensate one person for suffering the consequences of a wrong done to them, that is not the case if the person claiming to be a victim has deliberately chosen to make themselves one. They have not been wronged.

    I'm having trouble looking at this photo and concluding that the people sitting at that counter "have not been wronged" because they're deliberately breaking the Whites Only policy of Woolworths. Could you expand a little more on the "they were asking for it" theory of legal justification?
    Gee D wrote: »
    It may very well be legally relevant in the assessment of any damages sought. To the extent that money can be awarded for injured feelings, the injury to the feelings of the gay couple in the wedding cake example would probably have been worse if the refusal came out of the blue. Ms Scardina's feelings, she quite likely having chosen this baker in order to have her request denied, were probably much less affected.

    First off, I've not been able to find any details of the Colorado Commission's ruling on behalf of Ms. Scardina and whether it involved any financial award to her personally. Can you provide a link to back up your assertion?

    Second, if the state cannot enforce anti-discrimination laws through financial penalties, what enforcement mechanism would you consider appropriate? Or is the whole idea of enforcing anti-discrimination laws beyond the pale?

    Sorry, I somehow missed this post. I've not seen any report of the decision at all, but was speculating that the baker may well have been a deliberate choice.

    There is a difference between legislation which proscribes behaviour and giving a cause of action to recover damages; and legislation which proscribes behaviour and permits prosecution with fines as a penalty for breach. Doing both and more is quite possible. The Anti-Discrimination Act s108 sets out a wide range of orders which a tribunal may make, including an award of damages. The Act does not seem to provide for a prosecution which would result in a penalty.
  • Gee D wrote: »
    There is a difference between legislation which proscribes behaviour and giving a cause of action to recover damages; and legislation which proscribes behaviour and permits prosecution with fines as a penalty for breach.

    Is there a difference from the perspective of someone penalized under such a law? If you're required to pay a monetary penalty is the fact that you're paying it to the state a greater or lesser deterrent from lawbreaking than if you're paying the same penalty to a private individual?
  • IANAL, but I seem to remember this: if there's a penalty it's criminal, and if there are damages it's civil.
  • mousethief wrote: »
    IANAL, but I seem to remember this: if there's a penalty it's criminal, and if there are damages it's civil.

    Yeah, but aside from the semantic difference is there anyone who would think "I'm willing to pay a penalty/damages, but not damages/a penalty"?
  • Crœsos wrote: »
    Gee D wrote: »
    There is a difference between legislation which proscribes behaviour and giving a cause of action to recover damages; and legislation which proscribes behaviour and permits prosecution with fines as a penalty for breach.

    Is there a difference from the perspective of someone penalized under such a law? If you're required to pay a monetary penalty is the fact that you're paying it to the state a greater or lesser deterrent from lawbreaking than if you're paying the same penalty to a private individual?

    What Mousethief says is correct. Damages are assessed to compensate the person injured (using that in a very broad sense). The amount to be paid will vary from case to case - medical expenses may differ, differing loss of income in the past and future earning capacity, all sorts of other variables.

    Penalties will also vary - a higher penalty for a repeat offender for example. And while ignorance of the law will be no excuse, and won't affect any damages, an act done in ignorance may well attract a lower penalty because there was no intention to commit an offence.

    By and large, penalties are paid to the state and not an individual*, and you still seem to be having trouble in grasping the essential difference between them and damages. Try this approach: if you injure someone unlawfully, you are required to compensate your victim. But the state also views some injuries as so serious a threat to the state itself that it can bring an action for a penalty - a sum not to compensate but to punish.

    *The only example I can quickly think of here is that many cases of cruelty to animals are/were prosecuted by the RSPCA. It used be the case that the normal order of the court was that half the fine ("a moiety of the penalty") went to the RSPCA, in addition to a sum for the costs of the prosecution, with the balance to the government.
  • I dunno. Is it a felony or a mere misdemeanor? I suppose if it's just a penalty and not jail time, it's a misdemeanor. If you commit a misdemeanor, are you a criminal? I couldn't find that with a quick google. I'd say it would definitely be worse (say for finding a job) to be a criminal than to have been sued.
  • Gee DGee D Shipmate
    edited September 2018
    No longer that distinction in NSW and perhaps other states. It really became meaningless - my recollection from law school days is that by then felonies were those offences punishable by hard labor, while misdemeanours those punishable by imprisonment. So manslaughter was a misdemeanour, while a simple break, enter and steal was a felony. Felons and miscreants were both criminals.

    Perhaps those simply sued may have to declare that for some sorts of jobs depending on why they were sued. If it were for damages after a car accident, that's nothing. If you'r seeking a position in the CIA or equivalent, being sued for breach of contract may be something you'd need to declare. Maybe not.
  • Gee D wrote: »
    By and large, penalties are paid to the state and not an individual*, and you still seem to be having trouble in grasping the essential difference between them and damages.

    I get the distinction. I'm just questioning whether the ultimate recipient of a monetary penalty/damages is the state or a private individual is a meaningful distinction from the perspective of an offender, particularly if the offender is a business entity. The deterrent effect would seem to be the same.
  • @Croesus if you, who are not being pursued through the courts, get the distinction, do you not think it might be a bit condescending to think that a person who is being pursued through the courts won't.

    In the one case, the legal system is saying 'you've done something we've decided is wrong and so you're being fined'. In the other, the legal system is saying 'we enabling some random person to set you up to scoop a personal jackpot at your expense'.
  • Enoch wrote: »
    @Croesus if you, who are not being pursued through the courts, get the distinction, do you not think it might be a bit condescending to think that a person who is being pursued through the courts won't.

    As I said, it seems like a distinction without a difference from the perspective of an offender, especially a business entity. A $1,000 hit to the monthly bottom line is a $1,000 hit to the monthly bottom line, regardless of who you're paying it to.
    Enoch wrote: »
    In the one case, the legal system is saying 'you've done something we've decided is wrong and so you're being fined'. In the other, the legal system is saying 'we enabling some random person to set you up to scoop a personal jackpot at your expense'.

    Again, [citation needed]. I'm not sure how Ms. Scardina "set up" Masterpiece Bakery in a way that's notably different than other civil rights activists have "set up" various lunch counters, bus systems, and election officials.
  • @Croesus you can, and probably will, condemn me as a nasty old cynic, but life has left me with next to no belief in anyone's claim to be pursuing compensation where there is no direct physical or commercial injury, for high-minded reasons rather than because they smell the money.

    Perhaps I have read it wrong, but the picture you have now linked to twice, appears to me to show people protesting vigorously in person, very possibly at some risk to themselves. It doesn't to me look like a picture of a group of people storming a lawyer's office so as to bring compensation claims.


    Although I'm not sure how relevant it is, I'm afraid I don't think your argument about the $1,000 hit on the bottom line really stacks up either. Being in another country, I couldn't access the link with the newspaper report on this case, but the law report on the previous case involving the same baker gives the impression he's a small proprietor, personally engaged in his own business. This sounds like the sort of person who digs their heels in on what they see as a matter of personal principle. If this were, to him, simply a matter of a commercial hit, would he be likely to have stuck at it.
  • Enoch wrote: »
    @Croesus you can, and probably will, condemn me as a nasty old cynic, but life has left me with next to no belief in anyone's claim to be pursuing compensation where there is no direct physical or commercial injury, for high-minded reasons rather than because they smell the money.

    Once again, can you give a citation that a monetary award was either sought or granted in this case? The best I can tell from media accounts of this case is that mediation was ordered by the commission. The previous case the commission required Masterpiece to cease discrimination and mandated training on compliance with Colorado's anti-discrimination laws, which sort of sets expectation for what result could be achieved. What's the basis for your repeated insistence that monetary compensation is at stake here?
    Enoch wrote: »
    Perhaps I have read it wrong, but the picture you have now linked to twice, appears to me to show people protesting vigorously in person, very possibly at some risk to themselves.

    But they have, to use your words, "deliberately chosen to make themselves [victims]" and that therefore "[t]hey have not been wronged" and therefore we can dismiss their alleged grievances. I object to this line of reasoning.
    Enoch wrote: »
    Although I'm not sure how relevant it is, I'm afraid I don't think your argument about the $1,000 hit on the bottom line really stacks up either. Being in another country, I couldn't access the link with the newspaper report on this case, but the law report on the previous case involving the same baker gives the impression he's a small proprietor, personally engaged in his own business. This sounds like the sort of person who digs their heels in on what they see as a matter of personal principle.

    Once again, if that's the case I don't see him concluding that his principles would be violated by paying out compensation to a private citizen while paying a penalty to the state for the same action would be perfectly acceptable (or vice versa). It still seems to be a distinction without a difference from the perspective of the offender.
  • It seems to me the question is not the $1,000 but rather what consequences, in the terms of missed business, will accrue in the wake of the crime/lawsuit. Perhaps certain people won't hire you if you've committed a crime, but wouldn't be bothered if you were merely sued, since anybody can be sued. Or like that.
  • MMMMMM Shipmate
    Would there be an insurance issue, as well? That is, insurance will cover you for a civil claim but not for a criminal offence?

    MMM
  • Crœsos wrote: »
    [Once again, if that's the case I don't see him concluding that his principles would be violated by paying out compensation to a private citizen while paying a penalty to the state for the same action would be perfectly acceptable (or vice versa). It still seems to be a distinction without a difference from the perspective of the offender.

    It may be that he recognises that the law has certain requirements he is unwilling to meet, but that he'll accept the consequences of a fine going to the government rather than money into the pocket of the wronged person. But that's just speculation on my part.

    MMM - I doubt you could get insurance for claims of this sort, but I've never made any enquiries. It's very different to the compulsory insurance for personal injury in car accident cases, for example. There, the insurance covers any award of damages against you, but none of course for any fine that might also have been given. Insurance against any sort of criminal or quasi-criminal activity is probably unobtainable and may well be void as against public policy.
  • MMMMMM Shipmate
    I was thinking of a difference between civil and criminal liability generally, rather than this specific instance.

    MMM
  • Dentists can get insurance against civil liability.
  • Crœsos wrote: »
    Once again, can you give a citation that a monetary award was either sought or granted in this case? ...
    @Croesos I've no idea. I'm a continent and an ocean further away from this case than you are, and even the link you posted won't let itself be seen abroad.

    It's that where one person appears to set out to set somebody up in this way, there's a presumption in my mind that it's the smell of the compo gently brewing on the stove that draws them. You may disagree. You may think I ought to start from a position where I give them the benefit of the doubt, but I don't.
  • Enoch wrote: »
    It's that where one person appears to set out to set somebody up in this way, there's a presumption in my mind that it's the smell of the compo gently brewing on the stove that draws them. You may disagree.
    I would disagree. In my experience, what “draws” a potential plaintiff in a case like this is not compensation per se, but rather the opportunity to highlight and combat discrimination. The compensation, if sought, only matters because it is a tool that will get the attention of the one doing the discriminating and discourage similar behavior in the future.

    I’m not saying no one ever is motivated by the possibility of getting some money. But in my experience, that’s a rare, rare thing in this context.
  • Enoch wrote: »
    Perhaps I have read it wrong, but the picture you have now linked to twice, appears to me to show people protesting vigorously in person, very possibly at some risk to themselves. It doesn't to me look like a picture of a group of people storming a lawyer's office so as to bring compensation claims.
    Enoch wrote: »
    It's that where one person appears to set out to set somebody up in this way, there's a presumption in my mind that it's the smell of the compo gently brewing on the stove that draws them. You may disagree. You may think I ought to start from a position where I give them the benefit of the doubt, but I don't.

    As your first post above indicates, it's not that you don't give anyone who "appears to set out to set somebody up in this way" the benefit of the doubt, it's that you've decided not to extend the benefit of the doubt to this particular case despite being willing to extend such benefit to others.
  • mousethief wrote: »
    Dentists can get insurance against civil liability.

    Yes, but I'd be surprised if it covered them for deciding to go against the law, rather than doing their job negligently. The builder who fucked up our job has liability insurance for if someone has an accident on site or his floors fall in, but it's not going to pay me out now he's shown himself to be fucking useless and incompetent. I have to hope he's got the money himself.
  • MMMMMM Shipmate
    Sorry for continuing the tangent, and I Am Not An Expert, but I thought PI insurance responds to negligence.

    MMM
  • KarlLBKarlLB Shipmate
    edited September 2018
    MMM wrote: »
    Sorry for continuing the tangent, and I Am Not An Expert, but I thought PI insurance responds to negligence.

    MMM

    Yes. But not deliberate action. It covers through negligence, through weakness, but not through our deliberate fault. So it covers, oh, random example, a wall that falls over because your cement was mixed wrong, but not, also random example, if you ignore the building inspector and end up having to take it all down again, not having the resources to do so and making a series of rubbish excuses for not being able to complete the job.

    Tangents aside, I reckon the average bigoted baker would be rather more deterred by having to pay compensation to those horrible queers than a fine to the State.
  • Gee DGee D Shipmate
    edited September 2018
    KarlLB wrote: »
    mousethief wrote: »
    Dentists can get insurance against civil liability.

    Yes, but I'd be surprised if it covered them for deciding to go against the law, rather than doing their job negligently. The builder who fucked up our job has liability insurance for if someone has an accident on site or his floors fall in, but it's not going to pay me out now he's shown himself to be fucking useless and incompetent. I have to hope he's got the money himself.

    In my State, there is compulsory insurance for home building work - from memory, the present compulsory minimum cover is $500k. Also from memory, a home owner may claim directly against the insurer if the builder has died, or become bankrupt/gone into liquidation.
  • BoogieBoogie Shipmate
    Barnabas62 wrote: »

    I find this very hard to understand.

    If the bakery can refuse custom, then should they be allowed to advertise a service to the public? If the slogan is within the law (ie not hate speech etc) then the customer should be able to order whatever they want.

    Do T Shirt firms have the same right? Refuse custom to those whose slogans you don't like?

    The law seems to be an ass.

  • BroJamesBroJames Purgatory Host
    I imagine the answer is that T-shirt printers can refuse to print slogans they don’t like. A Brexit supporting T-shirt printer could refuse to print campaigning T-shirts for a second referendum.

    I suspect advertising the service is simply an invitation to treat.

    Refusing it on the grounds of the race, religion or sexual orientation of the customer would be illegal. Refusing it because you disagree with the content of the message is, it seems, allowed.
  • It's an interesting one, but then clashes of rights often make for the most interesting, and potentially important cases.

    On the one hand you have the right of homosexuals to non-discrimination and on the other, of the bakery owner, to freedom of religion.

    In principal, private businesses are allowed to refuse services to individuals. That's an important right. If a regular customer is rude and abusive, that's a good enough reason not to let them in your shop.

    As I understand it, this right has specific limitations because of discrimination. It is well documented how businesses would refuse to serve the Irish or Blacks etc. Hence particular groups are protected - that is, the law is pro-active and says, in effect "Yes you can refuse services to individuals - but not on these grounds - i.e. because you don't like their skin colour or sexual orientation.

    The key question in this case is that of what was the basis that the bakery refused the order.
    Is it sexual orientation or is it something else (that is acceptable under the law)?

    Now, clearly, if it was indeed sexual orientation (as alleged) that would be illegal. The baker's defence was that they were very happy to serve the customer but not to produce a message with which they profoundly disagreed. The Supreme Court found that there clearly was no direct discrimination as they were happy to serve the customer but the question is one of indirect discrimination; by not fulfilling the order to make a cake with that message. As the court notes, the person placing such an order could easily be of any sexual orientation.
    Lady Hale in her judgement says the following:
    what matters is that by being required to produce the cake they were being required to express a message with which they deeply disagreed.
    and hence it is an infringement of their right to freedom of religious expression and belief.

    Intriguingly, Lady Hale has added a post script referring to the US case and contrasting the differences. This is the last paragraph of the post script.
    62. The important message from the Masterpiece Bakery case is that there is a clear distinction between refusing to produce a cake conveying a particular message, for any customer who wants such a cake, and refusing to produce a cake for the particular customer who wants it because of that customer’s characteristics. One can debate which side of the line particular factual scenarios fall. But in our case there can be no doubt. The bakery would have refused to supply this particular cake to anyone, whatever their personal characteristics. So there was no discrimination on grounds of sexual orientation. If and to the extent that there was discrimination on grounds of political opinion, no justification has been shown for the compelled speech which would be entailed for imposing civil liability for refusing to fulfil the order.

    I think the key point here is that business would be expected to produce goods supporting causes with which they disagree in certain circumstances. As I understand it the bakers' freedom of religion and conscience trumps that requirement. Presumably, simply disagreeing with a statement would not be enough; there needs to be some compelling depth to that belief. I would value the comments of any actual lawyers to see if I have understood that correctly? Which means that the court has set a clear precedent but one in which they were fully conscious of how wide they wanted that precedent to be applied. If I was in the T-shirt printing business, I suspect I could be required to make some stating “Theresa May is the Best!” If Jeremy Hunt came in and ordered them. Something I strongly disagree with and would argue about at length, but not one that I could honestly argue that it compromises by deeply-held religious beliefs.

    FWIW, I am very much of the opinion that the church should shut up about gay-marriage and that the public space being filled with Christians against same-sex unions, compromises the gospel. I would have fulfilled the order, but I think the right of people not to be forced to do things that compromise their deeply held beliefs is really important. I wouldn’t expect a devout Jewish butcher to prepare pork joints for me, if they didn’t want to.

    The entire judgement can be found here.

    AFZ

    P.S. My main objection to the cake was that they had an image of Burt and Ernie on it (something I hadn’t previously appreciated). I really hate the idea that two male characters Must be gay. As has been pointed out (very wisely, in my view), they’re puppets and don’t exist below the waste.

  • Traders should be able to decline custom.
  • BroJamesBroJames Purgatory Host
    In general they are free to do just that. There are certain grounds, however, on which they are not free to do so in the UK.

    In general terms, they are not free to decline custom on the grounds of the customer’s
    • age
    • being or becoming a transsexual person
    • being married or in a civil partnership
    • being pregnant or on maternity leave
    • disability
    • race including colour, nationality, ethnic or national origin
    • religion, belief or lack of religion/belief
    • sex
    • sexual orientation

    These are known as ‘protected characteristics’. Other characteristics (e.g. red hair, BMI etc.) are not protected so discrimination against redheads or skinny people is not unlawful.

    The UK Supreme Court decided in the bakery case here that they would have refused to bake a cake with that message irrespective of the personal characteristics (in this case sexual orientation) of the customer.

    In other words the customer said ‘you refused the service because I’m gay’, and the bakers said, ‘we refused the service because of the message on the cake, and we would have refused it even for a straight customer.’
  • AFZ, it seems to me the "deeply held religious conviction" criterion invites horrific abuse. A cake saying "Black People Should Be Allowed to Vote" could be ordered by a white guy. The baker is a White Nationalist whose very religion, an offshoot of Christianity, denies the equality of the races. So he needn't bake it. And on and on until no one who isn't cis-het-white can buy anything expressing their identity. Is that the kind of society we want?
  • mousethief wrote: »
    AFZ, it seems to me the "deeply held religious conviction" criterion invites horrific abuse. A cake saying "Black People Should Be Allowed to Vote" could be ordered by a white guy. The baker is a White Nationalist whose very religion, an offshoot of Christianity, denies the equality of the races. So he needn't bake it. And on and on until no one who isn't cis-het-white can buy anything expressing their identity. Is that the kind of society we want?

    Except your example posits a cis-het-white guy also not being able to buy his desired product, which I think a critical factor. Businesses are allowed to limit what they sell, but have strictures on discriminating against whom they're selling to. Asher's Bakery won't sell a cake with a particular slogan on it to anyone, which is different than Masterpiece Cake Shop, which refused to sell a same-sex couple the same kind of white-frosted tiered cake they routinely sell to other people.
  • I misspoke although barely. Nobody of any description can buy a cake expressing a non-cis-het-white identity. That is my point, not the one that's been done to death.
  • Somewhere within this whole thing there is "don't be a dick". Which I suppose is really hard.
  • Somewhere within this whole thing there is "don't be a dick". Which I suppose is really hard.

    The problem is, who gets to define what "being a dick" means? We can hardly do that on the SOF. When the H&A step in, that's kind of the equivalent of taking it to the SCOTUS.

    "I'm not being a dick."
    "Yes you are."
    "No, I'm not. You're being a dick."
    "Am not."
    "Are too."
  • Gee DGee D Shipmate


    I think the key point here is that business would be expected to produce goods supporting causes with which they disagree in certain circumstances. As I understand it the bakers' freedom of religion and conscience trumps that requirement.

    That's quite a jump from the expectation in your first sentence to the requirement in the second.
  • Gee D wrote: »


    I think the key point here is that business would be expected to produce goods supporting causes with which they disagree in certain circumstances. As I understand it the bakers' freedom of religion and conscience trumps that requirement.

    That's quite a jump from the expectation in your first sentence to the requirement in the second.

    Do you think I've misrepresented the Supreme Court Judgment? I was trying very hard to condense it. They seem to me to know that they are drawing a very specific line (as they make reference to that) but clearly felt, in this case, the Freedom of Religion was the more important right...

    Have I misread it?

    AFZ
  • Gee DGee D Shipmate
    I agree with BrJames' post -both as a summary of the decision and what should be the outcome. Anti-discrimination legislation is all about discrimination against people on various grounds. It's not about generally limiting expression of opinions. For example, I can legitimately say that I consider that schools should be given the right to expel male students who insist on wearing tutus to school; were I to say that student X is only allowed half the time given to others to complete an exam because he's gay, I would be wrongly discriminating against him.
  • Gee D wrote: »
    I agree with BrJames' post -both as a summary of the decision and what should be the outcome. Anti-discrimination legislation is all about discrimination against people on various grounds. It's not about generally limiting expression of opinions. For example, I can legitimately say that I consider that schools should be given the right to expel male students who insist on wearing tutus to school; were I to say that student X is only allowed half the time given to others to complete an exam because he's gay, I would be wrongly discriminating against him.

    Yes and no, I think.
    The judges were are pains to discuss the potential for indirect discrimination.

    AFZ
  • BroJamesBroJames Purgatory Host
    The summary prepared by the Supreme Court is helpful in clarifying their reasoning in a case which is complicated by the involvement of two pieces of legislation and the European Convention on Human Rights (as well as procedural and jurisdictional issues).

    In relation to discrimination on the grounds of sexual orientation, the court noted that
    there was no evidence that the bakery had discriminated on [the grounds of sexual orientation] or any other prohibited ground in the past. The evidence was that they both employed and served gay people and treated them in a non-discriminatory way. Nor was there any finding that the reason for refusing to supply the cake was that Mr Lee was thought to associate with gay people.
    and the court found that the discrimination was not on the grounds of Mr. Lee's sexual orientation, or on the basis of anything indissociable from it. The objection was to the message itself.

    Under the the Fair Employment and Treatment (Northern Ireland) Order 1998 (‘FETO’) it is unlawful to discriminate against someone because of their political opinion. The court found that the provisions of FETO are relevant to this case. The question then was would the application of FETO breach the bakers' rights under the European Convention on Human Rights.

    The court noted that the rights protected under the convention
    include the right not to be obliged to manifest beliefs one does not hold. The McArthurs could not refuse to provide their products to Mr Lee because he was a gay man or because he supported gay marriage, but that was different from obliging them to supply a cake iced with a message with which they profoundly disagreed. FETO should not be read or given effect in such a way as to compel them to do so unless justification was shown, and it had not been in this case.

    So, for example, if a person runs a printing business, they are not allowed to refuse to supply a customer on the basis of their sexual orientation, or because they hold political beliefs (in this case equal marriage) with which the printer disagrees. They are not, however, required to provide the customer with materials to promote a cause with which the printer disagrees.
  • EnochEnoch Shipmate
    I've been travelling around on shore for the last 9+ days. I was wondering as soon as I climbed the gang plank again this evening whether this thread was still going and if so what might be shipmates reaction to the Ashers Bakery decision - even though that isn't the cake the thread was about. If shipmates find this at all persuasive, the impression I've picked up is that most lawyers think Lady Hale has got it more or less right. You'll also see that the other four judges have agreed with her, i.e. both the decisions itself and the reasoning counts as the decision and reasons of all of them.

    Elsewhere, I've also seen a comment that the law protects a person from being discriminated against, but that doesn't extent to giving a cake the right not to be discriminated against.
  • EliabEliab Shipmate, Purgatory Host
    edited October 2018
    Enoch wrote: »
    If shipmates find this at all persuasive, the impression I've picked up is that most lawyers think Lady Hale has got it more or less right.

    My comments on the old board, in 2016, explaining the reasoning of the Court of Appeal judgment (ie. the one that has been overturned) and then my comments on it:
    if you are prepared to decorate cakes with political slogans that don't necessarily reflect your own views, but exclude such slogans as a gay person is likely to request, then you are indirectly discriminating.

    To be honest, I'm not entirely comfortable with the finding that a request for a slogan like "Support gay marriage" is effectively a proxy for "gay customer" [...] Also, most supporters of gay marriage are straight (the most vocal ones might well be gay - they have most at stake - but since straights outnumber gays by at least nine to one, the majority of the total number in favour will almost certainly be hetero).

    And from Lady Hale's judgment:
    The District Judge also considered at length the question of whether the criterion used by the bakery was “indissociable” from the protected characteristic and held that support for same sex marriage was indissociable from sexual orientation (para 42). This is, however, to misunderstand the role that “indissociability” plays in direct discrimination. It comes into play when the express or overt criterion used as the reason for less favourable treatment is not the protected characteristic itself but some proxy for it. [...] there is no such identity between the criterion and sexual orientation of the customer. People of all sexual orientations, gay, straight or bi-sexual, can and do support gay marriage. Support for gay marriage is not a proxy for any particular sexual orientation.

    I thought the CA judgment was legally questionable for much the same reasons as the Supreme Court has now overturned it, but I'm still disappointed with the result. I think extending the law to class what Ashers did as actionable discrimination would be a step in the right direction, because I don't think there is a morally defensible case, if you are a commercial producer of 'speech for hire' in any form, to say that in general you are willing to produce speech that you disagree with, but not if it supports gay rights. Where, as here, there was a clear intention to treat support for gay rights less favourably than support for straight rights, I think the law ought to protect the gay customer from effect of that intention more than it should protect the homophobe.

    Therefore I think that the Supreme Court judgment is legally sound, even though a case could be made in the other direction, and the alternative case would, morally and socially, have been the better choice.
  • BroJamesBroJames Purgatory Host
    I don't think there is a morally defensible case, if you are a commercial producer of 'speech for hire' in any form, to say that in general you are willing to produce speech that you disagree with, but not if it supports gay rights.
    I think in the context of Northern Ireland there is an issue around slogans supporting particular political opinions as well (FETO). I’m guessing that it’s possible that the bakery might also have been unwilling to produce a cake with a slogan in favour of Sinn Fein or a united Ireland. Further, as it stands, the Supreme Court judgment (as I read it at least) sees the protection against being required to make statements you disagree with as being a matter of human rights under ECHR - which by treaty is beyond immediate legislative reach.
  • EnochEnoch Shipmate
    Eliab wrote: »
    ... I thought the CA judgment was legally questionable for much the same reasons as the Supreme Court has now overturned it, but I'm still disappointed with the result. I think extending the law to class what Ashers did as actionable discrimination would be a step in the right direction, because I don't think there is a morally defensible case, if you are a commercial producer of 'speech for hire' in any form, to say that in general you are willing to produce speech that you disagree with, but not if it supports gay rights. Where, as here, there was a clear intention to treat support for gay rights less favourably than support for straight rights, I think the law ought to protect the gay customer from effect of that intention more than it should protect the homophobe.

    Therefore I think that the Supreme Court judgment is legally sound, even though a case could be made in the other direction, and the alternative case would, morally and socially, have been the better choice.
    Not quite sure what you mean in this context by "a commercial producer of 'speech for hire' in any form". I can see that might describe barristers governed by the cab-rank rule, but that really does only apply to barristers and nobody else. It doesn't apply to solicitors and I've no idea whether any equivalent exists outside UK jurisdictions or not. I could perhaps see an argument for maintaining it ought to apply to printers, though I wouldn't feel any obligation to agree with you. It clearly doesn't apply to publishers, and I've never heard any suggestion any such right exists anyway.

    But in this instance, the Ashers weren't even 'commercial producers of speeches'. They are commercial producers of cakes. The primary purpose of a cake is to be eaten, not read. The fact that some people ask to have put slogans, like say 'Happy Birthday' on them is fairly collateral.
  • Gee DGee D Shipmate
    Not at all sure what you mean by "in any form". What I think about the lay client is irrelevant, and I have a duty to present the client's case in court as best I can - but subject to a whole series of constraints. Much though it may advance the client's case, I can't say that the opponent or witness lied without having put that fairly and squarely to them in the witness box. I can't misrepresent the law, much though I may feel that that law is wrong. It goes on from there. And I am bound by the cab-rank rule.
  • EnochEnoch Shipmate
    Gee D wrote: »
    Not at all sure what you mean by "in any form"....
    I wasn't sure either @Gee D. I was assuming @Eliab meant irrespective of whether one was producing speeches for hire verbally, or in writing or in some other unspecified way.
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