Which discrimination should trump which discrimination?

Peregrinus

Hotblack Desiato wrote: »

Unless they also refuse to put union jacks and God Save The Queen slogans on cakes too, then yes, yes they should.

How pathetic and damning of NI is it though that someone can introduce the analogy of having a "unionist bakery" in that society and nobody considers it a ridiculous or outlandish notion that a cake shop could have a political view...

A company is a group of people, and a group of people can certainly hold a collective political view, or indeed a collective view of any kind.

And, as it happens, Asher's Bakery is a family company. All the members of the company are related to one another. It's not at all surprising that they would hold some views in common.

Hotblack Desiato

Nobody is questioning that they can hold whatever views they like, or that they would hold views in common.

It's when they start using these views to discriminate against serving customers or hiring staff that society, rightly, takes issue with it.

recedite

Hotblack Desiato wrote: »

Nobody is questioning that they can hold whatever views they like, or that they would hold views in common.

It's when they start using these views to discriminate against serving customers or hiring staff that society, rightly, takes issue with it.

But its..

recedite wrote: »

Important to note here that the baker is not accused of refusing to serve a gay man.
The baker refused to paint a particular slogan on a cake (with icing or whatever)

magicbastarder

Peregrinus wrote: »

A company is a group of people, and a group of people can certainly hold a collective political view, or indeed a collective view of any kind.

https://www.youtube.com/watch?v=W2firijxQOo

recedite

Joking aside, a large corporation does not tend to have many "values" other than to make profit, which itself tends to require both staying within the law and maintaining good PR.

And of course Starbucks recently recalled their US staff for re-education after a manager asked non-paying black "customers" to leave.

On the other hand, its hard to separate the values of a sole trader from their own personal values. And a small family business is only one step up from that.

Peregrinus

Hotblack Desiato wrote: »

Nobody is questioning that they can hold whatever views they like, or that they would hold views in common.

It's when they start using these views to discriminate against serving customers or hiring staff that society, rightly, takes issue with it.

Sure, but that's a different point. There's a right of, e.g., free speech, but we all accept in some circumstances that right has to be limited in order to protect
other rights or interests. But those circumstances don't depend on whether we are limiting an individual right of free speech by one person, or a collective right of free speech by an association of persons. I can't see any argument for saying that an individual baker could refuse to bake the cake, but a company of bakers operating a cake should can't.

Do you think if the order had been for a cake saying "support traditional marriage", to be baked for a group campaigning against a change to the law, Ashers should be allowed to refuse it?

Peregrinus

recedite wrote: »

Joking aside, a large corporation does not tend to have many "values" other than to make profit, which itself tends to require both staying within the law and maintaining good PR.

And of course Starbucks recently recalled their US staff for re-education after a manager asked non-paying black "customers" to leave.

On the other hand, its hard to separate the values of a sole trader from their own personal values. And a small family business is only one step up from that.

I don't see why rights which can be exercised by individuals or by small groups can't be exercised by large groups. How large does Atheist Ireland have to be before it loses the right to freedom of conscience, and can be banned from its blasphemous and unnatural practices?

I take your point about a commercial organisation not having "values", but the whole point about rights is that, if I have a right to do X, I don't have to satisfy you as to my motives or reasons for doing X before I'm allowed to do it. The right to freedom of speech means precisely that I can say things you think I shouldn't say, or decline to say things that you think I should say, so the fact that you don't think I can have valid reason for my stance is neither here nor there.

Hotblack Desiato

Peregrinus wrote: »

I can't see any argument for saying that an individual baker could refuse to bake the cake, but a company of bakers operating a cake should can't.

You can't see that argument because nobody has argued that...

Do you think if the order had been for a cake saying "support traditional marriage", to be baked for a group campaigning against a change to the law, Ashers should be allowed to refuse it?

Either they refuse all political issues, or accept all (within the law).

If you accept they can refuse "gay" cakes, how is that any different from the B&B which refused a room to a gay couple? (and lost their case, spectacularly.)


In short if one chooses to be in business to offer a service to the public, one should not use that service to discriminate against people based on their race, sexual orientation, political opinion, etc.

Political opinion being the relevant ground in this case as far as I can see.

TheChizler

Hotblack Desiato wrote: »

If you accept they can refuse "gay" cakes, how is that any different from the B&B which refused a room to a gay couple? (and lost their case, spectacularly.)

One is refusing service based on the content of what the customer is requesting, the other is refusing service based on the sexual orientation of the customer, surely these are vastly different things? I don't see the connection, unless you're saying a 'gay cake' itself has rights.

Peregrinus

Hotblack Desiato wrote: »

Either they refuse all political issues, or accept all (within the law).

Why? My right of free speech allows me to express one political opinion, and decline to express others. I don't see that I lose that right when I'm speaking in a commercial context.

Hotblack Desiato wrote: »

If you accept they can refuse "gay" cakes, how is that any different from the B&B which refused a room to a gay couple? (and lost their case, spectacularly.)

Because renting a room to a traveller is not an exercise of speech in the same way that providing material for a political campaign is.

I agree that, in general, businesses should be required to provide services to the public without discrimination. But that's not an absolute principle; sometimes it it's in tension with other principles, and something has to give.

Here, I think, we have a tension between the principle of non-discrimination and the principle of freedom of speech/freedom to engage in democratic politics. It's crucial, in my view, that the cake wasn't a simple wedding cake for a gay couple. In fact it wasn't a wedding cake at all; it was material for a political campaigning group. And I think it's important in a democracy that people be free to engage in and support political campaigns and, it follows, not to do so.

It would be different if, because I disliked your political opinion, I refused to sell you some unrelated service; that would be objectionable discrimination on the grounds of political opinion. But here there were being asked to provide a service specifically to support a political campaign; I think people must have the right to decline to do that.

magicbastarder

Peregrinus wrote: »

Why? My right of free speech allows me to express one political opinion, and decline to express others. I don't see that I lose that right when I'm speaking in a commercial context.

i would be curious as to how print companies operate in the north coming up to elections. can a 'unionist' print company refuse to print posters for the SDLP, for example?

Peregrinus

On my argument, they should be allowed to. Whether the courts would agree with me is another matter; we may find out in as a result of this case!

In the real world, I don't think the situation arises very much. Political parties would tend to give that kind of work to firms belonging to people already involved with them, for a few reasons. They'd hope to get a good service/a good price from a supporter, for one. It tends to cement involvement/commitment for another.

recedite

The whole notion of "politics" being grounds for illegal discrimination is somewhat untested. I'm not sure whether its a good idea or not, but NI is in a unique situation so maybe it would work there, but nowhere else.

I think when they made the law, they should have specified a limit to it. Otherwise its too open to abuse (vexatious "customers" using it to annoy or harass other people)
If the SC ruling goes in favour of Asher's, that will itself become a common law precedent, or in other words a limit will have been set.

Peregrinus

recedite wrote: »

The whole notion of "politics" being grounds for illegal discrimination is somewhat untested. I'm not sure whether its a good idea or not, but NI is in a unique situation so maybe it would work there, but nowhere else.

It is, I think, unique to NI. As we know, while the two communities there are often identified as "Catholic" and "Protestant", that's a generalisation/oversimplification. What actually separates them is their attitude to the Union (with Great Britain) so, in the specific circumstances of NI, I think you can justify including that in a list of prohibited grounds for the purposes of discrimination law. Though, if we're honest, what we are really seeking to get at here is not people acting so as to advance or retard someone else's political programme - doing that is fundamental to democratic processes, basically - but people using political opinion as a proxy for identifying a particular community, which they seek to disadvantage.

recedite wrote: »

I think when they made the law, they should have specified a limit to it. Otherwise its too open to abuse (vexatious "customers" using it to annoy or harass other people)
If the SC ruling goes in favour of Asher's, that will itself become a common law precedent, or in other words a limit will have been set.

Well, I dunno. We're using the occasion to observe and comment on NI law as it relates to discrimination on the grounds of political opinion. But from what I have read (admittedly, I haven't read everything) that isn't really featuring in the way the case has been decided by the courts. In the judgment of the NI Court of Appeal (which is now being appealed to the Supreme Court) the judge decides that there is discrimination on the grounds of sexual orientation, so he explicitly does not go on to say whether there has also been discrimination on the grounds of political opinion.

It seems to me that Ashers will win on appeal if they can persuade the SC that there has been no discrimination on the grounds of sexual orientation.

recedite

Peregrinus wrote: »

In the judgment of the NI Court of Appeal (which is now being appealed to the Supreme Court) the judge decides that there is discrimination on the grounds of sexual orientation, so he explicitly does not go on to say whether there has also been discrimination on the grounds of political opinion.
It seems to me that Ashers will win on appeal if they can persuade the SC that there has been no discrimination on the grounds of sexual orientation.

OK, well just checking this again, it was reported that...

(Judge) Morgan declared that the original judgment at Belfast recorders court had been correct in finding that, “as a matter of law”, Ashers had “discriminated against the respondent directly on the grounds of sexual orientation contrary to the Equality Act (Sexual Orientation) Regulations 2006”.
He said the legislation on equality in the region could not be changed to suit one particular religious or political group.
On Ashers’ stance regarding the cake, Morgan said: “The supplier may provide the particular service to all or to none but not to a selection of customers based on prohibited grounds. In the present case the appellants might elect not to provide a service that involves any religious or political message. What they may not do is provide a service that only reflects their own political or religious message in relation to sexual orientation.”

So in the first part of the quote, yes the grounds for discrimination is given as "sexual orientation" and not "political message". And it is said to be "direct" discrimination. But IMO it is not direct discrimination, because the prosecution does not seem to have established that the baker thought the customer was gay. The message was in support of gay rights, which is only an indirect link IMO.
The refusal to paint the gay rights slogan would still have been illegal as "political" discrimination, but as you say, that is not what the baker was charged with.

Then in the second part of the quote, the judge goes on to advise the baker on what he may, or may not, do. But these examples relate to cakes carrying religious and/or political slogans. Which is fine. Its a description of the baker's actual "discrimination", but its not the discrimination he was charged with.

So yeah, the whole thing is a bit confusing. The prosecution used the wrong charges (it should really have been refusal to do a political slogan)

And the baker arguably used the wrong defense. He could have just said he doesn't do any slogans relating to politics or sexual orientation on cakes. Then he'd have been out of trouble.

But Asher's are still using the free lawyers provided by The Christian Institute, so obviously the institute's agenda here is not so much to "get the client off" but to to win this whole matter on principle.
I think they're still in with a good chance. As they say themselves ...

Laws on discrimination protect people, not campaign messages

Also onside is the NI AG, John Larkin QC....

John Larkin QC wrote:

He again reminded the court that the issue was the message on the cake, rather than the man who ordered it – LGBT activist Gareth Lee.
Larkin made clear that Lee could, without question, buy products from Ashers, but compelling the bakery to display a message in conflict with their religious beliefs was wrong.
‘There is a fundamental distinction between objecting to a word in a message and objecting to serve a person who describes themselves with that word’, he said.

http://www.christian.org.uk/news/ashers-supreme-court-day-two-law-protects-people-not-campaign-messages/

If Asher's win this, it will be a bloody nose to the NI Equality Commission who have been pushing the prosecution all along. Heads could roll. Its possibly an example of a taxpayer funded agency becoming filled with staff who share a common view or agenda, but who do not really represent the view of average taxpayer or the general public.

Peregrinus

I don't think either case is particularly strong (even though Asher's have lost twice now!) but the case resting on sexual orientation discrimination is stronger than the case resting on political opinion discrmination. I am convinced that the court would not hold that refusing to support a particular political campaign is not unlawful discrimination against the organisers/participants in that campaign on the basis of their political opinions. If the Equality Commission haven't advanced this argument, I think it's probably because they know it must fail.

robindch

The majority-conservative US Supreme Court has ruled in favour of a baker in Colorado who refused to bake a cake for a gay couple:

https://www.bbc.com/news/world-us-canada-44361162

Peregrinus

robindch wrote: »

The majority-conservative US Supreme Court has ruled in favour of a baker in Colorado who refused to bake a cake for a gay couple:

https://www.bbc.com/news/world-us-canada-44361162

It may be a "majority-conservative" court, but the fact that this was a 7-2 decision suggests that this was a bit more than the usual liberal/conservative split.

Two of the judges reckoned that making a cake with an explicit message or a clear symbolic significance (like a wedding cake) was a form of "speech" protected by the First Amendment's free speech provisions. Free speech rights work both ways; on the one hand, you can't be constrained from saying what you want to say but, on the other, you can't be compelled to say what you don't want to say.

Public-accommodations laws generally regulate conduct, but when they start to regulate conduct which amounts to speech "the First Amendment applies with full force", and restrictions on speech have to be measured against a strict constitutional standard. The two judges considered that the Colorado court hadn't applied this standard, and therefore its decision must be struck down.

(Note: they didn't say that the decision against the baker couldn't survive this strict scrutiny; just that the Colorado courts should have measured it against the strict test that must be applied to restrictions on the freedom of speech, and they didn't.)

Whatever you think of this argument, it's of no relevance to florists, chauffeurs, hotels or many other businesses who are in the market of providing wedding-related services that cannot be construed as forms of speech.

The other five judges decided the case not on First Amendment Free Speech grounds, but on First Amendment Free Exercise grounds. Basically, they thought that the Colorado Civil Rights Commission, and later the Colorado Courts, failed to give proper consideration to the baker's Free Exercise Rights, and they thought this was (or at least appeared to be) due to an animus against or downgrading of Free Exercise rights. They pointed to various statements made in the proceedings by officers of the Colorado Civil Rights Commission:

"At several points during its meeting, commissioners endorsed the view that religious beliefs cannot legitimately be carried into the public sphere or commercial domain, implying that religious beliefs and persons are less than fully welcome in Colorado's business community."

"One commissioner suggested that Phillips can believe 'what he wants to believe,' but cannot act on his religious beliefs 'if he decides to do business in the state.'"

"To describe a man's faith as 'one of the most despicable pieces of rhetoric that people can use' [as one Commissioner did] is to disparage his religion in at least two distinct ways: by describing it as despicable, and also by characterizing it as merely rhetorical—something insubstantial and even insincere."

"The Commissioner even went so far as to compare Phillips' invocation of his sincerely held religious beliefs to defenses of slavery and the Holocaust. This sentiment is inappropriate for a Commission charged with the solemn responsibility of fair and neutral enforcement of Colorado's antidiscrimination law—a law that [prevents] discrimination on the basis of religion as well as sexual orientation."

"The Court cannot avoid the conclusion that these statements. . . cast doubt on the fairness and impartiality of the Commission's adjudication of Phillips' case."

There was a second argument that seemed to carry weight with the judges. In other cases in Colorado different bakers had refused to provide cakes with anti-marriage equality messages and scriptural texts, and complaints were made to the Commission. In those case the Commission upheld the right of the bakers to refuse service, accepting arguments from the bakers which it rejected in Phillip's case, and rejecting arguments from the complainants which it accepted in Phillip's case. Phillips argued in the Colorado courts that there was a clear disparity of treatment between his conscientious objections and those of the other bakers - a double standard, in other words. The Supreme Court held that the Colorado court hadn't adequately considered or addressed that argument. As two of the Supreme Court justices pointed out, there was in fact a perfectly sound basis for justifying the different outcomes in the various baker cases, supported by existing precedents, but the Colorado Commission and the Colorado Court never looked for it. They simply failed to address the disparity of treatment argument, and this reinforced the impression of an animus against religion.

In short, the Colorado authorities may have stuffed up the handling of this matter. But the Supreme Court decision doesn't amount to a precedent that generally allows bakers to refuse to bake cakes for same-sex weddings. The Free Speech argument would have general application, but only two justices relied on it. The other five decided the case on the basis of apparent bias by the Colorado authorities in the handling of this matter, and that tells us very little about other similar cases that might come before the court that have been more competently handled.

recedite

But Mr Phillips refused, saying it was his "standard business practice not to provide cakes for same-sex weddings" as it would amount to endorsing "something that directly goes against" the Bible.
Instead, he offered them other products, including birthday cakes and biscuits.

The gay couple could have saved everybody a lot of trouble if they had accepted the offer of the wedding biscuits.
"And now the moment we have all been waiting for... Adam and Steve will slice the fig rolls".


On a more serious note though, there's a difference between this case and the Ashers one. This guy refused to sell them a cake because it was for a gay wedding, which is tantamount to refusing them because they were gay.
The Asher's guy refused to put a gay slogan on a cake. There was no indication that the guy trying to buy the cake was himself gay. So that is opting out of a political campaign, as opposed to discrimination against a gay
customer.

Also of course, a different country, with different laws.

mickydcork

recedite wrote: »

:DThe gay couple could have saved everybody a lot of trouble if they had accepted the offer of the wedding biscuits.
"And now the moment we have all been waiting for... Adam and Steve will slice the fig rolls".


On a more serious note though, there's a difference between this case and the Ashers one. This guy refused to sell them a cake because it was for a gay wedding, which is tantamount to refusing them because they were gay.
The Asher's guy refused to put a gay slogan on a cake. There was no indication that the guy trying to buy the cake was himself gay. So that is opting out of a political campaign, as opposed to discrimination against a gay
customer.

Also of course, a different country, with different laws.

Is that really the situation here? Basically refusing to sell them a cake because of their sexuality?

That can't be the case surely? There must have been some message or imagery on the cake he had a problem with? Because the decision seems to have hinged on the idea of freedom of speech working both ways - you have freedom to say what you want but also you have freedom to not say certain things you don't want to say or messages you want to display etc.

In general I'm conflicted about these type of situations - if it's not direct discrimination I'm not sure the state should get involved. The bakery should just be blackballed by the public and eventually they'll hopefully go out of business (different story if they directly discriminate by refusing to sell them a cake because they are gay, that can't be allowed to continue).

recedite

That was in the USA. Individual liberty tends to be a bigger deal there than it is in Europe.

Peregrinus

mickydcork wrote: »

Is that really the situation here? Basically refusing to sell them a cake because of their sexuality?

Actually, no, it isn't. The baker was happy to sell them any of the off-the-shelf cakes in his shop. He had no objection to serving gay people as such.

That wasn't what they wanted, though. They wanted him to do a one-off custom-designed cake for their wedding. (Custom design of a unique cake was one of the services he offered.) That was a level of support specifically for their wedding that he wasn't willing to provide.

In short: he was happy to sell cakes to gay people. He was not happy to accept commissions to design unique cakes for same-sex marriages.

Overheal

I always read past this thread as “which discrimination should trump do next?”

Peregrinus

Overheal wrote: »

I always read past this thread as “which discrimination should trump do next?”

All of them, is my guess!

recedite

Peregrinus wrote: »

All of them, is my guess!

Fact Check;

Trump is right that African-American unemployment hit a record low in December. The unemployment rate for black Americans is currently 6.8 percent, the lowest level recorded since the government started keeping track in January 1972.
And he's also right that the Hispanic unemployment rate is down a point over the last year — it was at 4.9 percent in December, down from 5.9 percent in December 2016. That is close to a record low, though it's also up 0.1 point from November.

Employment discrimination against blacks would have been rife before 1972, so we can confidently say Trump times are the best EVER for black American employment opportunities.

Peregrinus

Although, from your own source, there is not much case for saying that any credit for this is due to Trump.

It's also not much of a defence against the charge of discrimination. While African-American unemployment was down, so was unemployment for white Americans. And relative unemployment rated had got worse; when Trump came into office African-Americans were twice as likely to be unemployed as white Americans, but over the time period covered by your link this stretched out to two-and-a-half times more likely to be unemployed. So if you insist that Trump is responsible for growth in employment over this period, you also have to accept that he must account for why the growth disproportionately favoured white Americans.

mickydcork

Peregrinus wrote: »

Actually, no, it isn't. The baker was happy to sell them any of the off-the-shelf cakes in his shop. He had no objection to serving gay people as such.

That wasn't what they wanted, though. They wanted him to do a one-off custom-designed cake for their wedding. (Custom design of a unique cake was one of the services he offered.) That was a level of support specifically for their wedding that he wasn't willing to provide.

In short: he was happy to sell cakes to gay people. He was not happy to accept commissions to design unique cakes for same-sex marriages.

Hmm. This is a tough one for me.
This is borderline discrimination.

I mean I think the baker is a dick but, should he be forced to design a cake he doesn't want to do?

I think this is a situation where the market should do the heavy lifting. Let's all just boycott cake shops like this and just go to the one down the road that will do cakes for same-sex marriages.

Peregrinus

mickydcork wrote: »

Hmm. This is a tough one for me.
This is borderline discrimination.

I mean I think the baker is a dick but, should he be forced to design a cake he doesn't want to do?

He's essentially running a free speech defence. He argues that his designing and producing a custom cake is artistic expression, a form of speech, and as such is constitutionally protected.

mickydcork wrote: »

I think this is a situation where the market should do the heavy lifting. Let's all just boycott cake shops like this and just go to the one down the road that will do cakes for same-sex marriages.

Mmm. Would you say the same if a baker were refusing to supply wedding cakes for mixed-race marriages?

recedite

mickydcork wrote: »

Let's all just boycott cake shops like this and just go to the one down the road that will do cakes for same-sex marriages.

That can work. This guy was forced to close down, which made the workers redundant.

Peregrinus

recedite wrote: »

That can work. This guy was forced to close down, which made the workers redundant.

Is that correct? On the one had the article says that he closed the business; on the other, that the business was taken over by new owners, and still continues. Either way, there is no mention of redundancies.

Still, assume for the moment that it is true that the business closed, and redundancies resulted. Those who argue for matters like this to be left to the market presumably think that's exactly what should happen.

If you think this is a bad outcome (because redundancies) then that consideration might lead you to favour a regulatory solution, where the authorities make rules that prevent you from refusing orders that you find morally objectionable, and as a result your business thrives and jobs are saved.