Why businesses should NOT have the right to refuse to provide services to people they believe could compromise their religious beliefs?
Because businesses do not have a religion!
Yes, like states, businesses and corporations do not have a religion and they should be trading with everyone irrespective of their age, disability, gender reassignment, marital status, pregnancy, race, religion, sex and sexual orientation (collectively called ‘protected characteristics’ as defined by equality legislation in the UK). But if the question is ‘should the businesses have a right to refuse to provide services they believe could compromise their religious beliefs’, the answer could be different.
The debate saw another day in the week just before the Irish Republic overwhelmingly backed same-sex marriage in a referendum, as the judge in Belfast County Court (Northern Ireland) reached a decision in the ‘gay cake’ case. Ashers Bakery, a Christian-run entity refused to make a cake bearing a pro-gay marriage message. The company consistently maintained that the issue for them lay with the message they were asked to produce and not with the customer Mr Lee, who is a gay. In contrast to the case where a B&B refused to book a room for a gay couple, it is arguable that refusing to offer a particular service to everyone (irrespective of their protected characteristics) is not unlawful. However, after hearing the evidence for three days, the District Judge Isobel Brownlie ruled against Ashers on facts and held them to have unlawfully discriminated on the grounds of sexual orientation and political opinion.
The debate around this case has mainly been revolving around the equality-freedom paradigm during which the media hype has made it a politically emotional issue. Supposedly responsible figures like Coleen Nolan and Katie Hopkins have raised the public emotions by making irresponsible comparisons. As in the case of Human Rights Act, there has been a lot of talk on the ‘gay cake’ by laymen while very little has been written in legal terms to give a rounded and in-depth consideration to the judgement itself. This blog reflects upon some legal issues raised in and after the judgement.
The Fair Employment and Treatment (Northern Ireland) Order 1998 [1998 Order]
This anti-discrimination law based on political opinion (and religious belief) is unique to Northern Ireland and it appears that the judge’s findings were inevitable on this point of law. Historically, this piece of legislation was implemented in the context of prevailing issue of people being treated less favourably due to their Unionist or Nationalist views.
If the case was a matter of simple contract law, it would have been a clear-cut case at the end of which Ashers would have lost anyway. Mr Lee made an offer to Ashers to enter into a contract to bake a cake. By accepting Mr Lee’s money, Ashers accepted the contract. After a couple of days, Ashers impliedly breached the contract (through their conduct) by returning the money to Mr Lee indicating that the business had no intention to fulfil the contract. Hence, there was a simple breach of contract for which Ashers would have been held liable.
Analogies used during the hearing
The submissions made to the court were full of interesting analogies and warnings by Mr David Scoffield (representing Ashers) and Robin Allen QC (representing Mr Lee).
David Scoffield presented four examples of hypothetical cases which he thought to be problematic.
“If the plaintiff is right, a Muslim printer could not decline printing a cartoon of the Prophet Muhammad. An atheist baker could not decline baking a cake with the slogan God made the world in six days. A gay baker could not decline to make a cake with the message gay sex is an abomination. A Catholic baker could not decline to bake a cake looking for abortion to be legalised,” he said.
Let me add two further possibilities to this list. An anti-democracy campaigner of Hizb-e-Tahrir places an order for making a cake with a slogan ‘voting is polytheism’ and another anti- Human Rights Act activist wants a cake with a message ‘HRA protects criminals’.
The examples quoted by Mr Scoffield have a religious element whereas my two examples are more of a political nature though Hizb-e-Tahrir has always coined it in religious terms. The point that Mr Scoffield (and forgivably many laymen) fail to note is: it is the protected characteristic of the customer that needs protection. The likely questions considered by the judge in such cases would investigate the characteristics of the customer and reasons for demanding the service as well as the reasons for refusing to provide the service asked for.
Mr Allen dealt with two of the examples – a Catholic and a Muslim baker – in the context of contract law. He submitted that these bakers could only refuse the orders for cakes with controversial messages if their terms and conditions were that they refused all such orders as a category. This simple line of reasoning followed under the law of contract would leave us with strange situations where the freedom to contract is restricted.
The judgment on discrimination based on sexual orientation
The judge in Ashers rightly noted that it is the word ‘gay’ to which Ashers took exception. She also rightly pointed out that the bakers gave no consideration to any other measures such as the non – Christian decorator icing the cake or sub-contracting this order. However, Ashers stated in evidence that they would have baked the cake for Mr Lee if the controversial message was not there. They also have at least one gay member of staff in their business. Given this evidence, the judge’s finding that Ashers refused to provide the service due to the sexual orientation is an uneasy one. As convincingly put by Alasdair Henderson, conflating support for an idea (here same-sex marriage) with sexual orientation (here homosexual) misses the point that many heterosexual people support gay marriages and a good number of homosexuals oppose it.
Nevertheless, the judge could have taken a different line of reasoning to find that Ashers discriminated on the basis of sexual orientation. While a business cannot refuse to bake a ‘gay cake’ because the customer was gay but a business can refuse to provide a service in a particular way to produce a particular result if the business does not wish to (for reasons other than discrimination). This line of reasoning would have left the concept of freedom of contract intact and also promoted the anti-discrimination cause. Following this line of reasoning would also have helped a baker in the UK who found himself in a situation similar to one in Denver (USA) where another baker was asked by a customer to write anti-gay phrases on two cakes shaped like Bibles!
If the case of similar nature is heard in England & Wales
As the law stands in Northern Ireland, the four examples quoted by Mr Scoffield will be caught by Order 1998. If a case of printing a cartoon or a pro-abortion message on a cake is heard in the courts of England and Wales, the party affected by refusal to bake such a cake cannot be said to possess a protected characteristic as defined by the equality legislation – political opinions including being pro-cartoon or anti-abortion are not being a protected characteristic under the equality legislation. Hence, it could arguably be possible to reject these orders without been found liable if the underlying reason was not discrimination on the basis of a protected characteristic.
Ashers may appeal against the decision but what is more alarming is the political attitude toward the issues of fairness and discrimination. DUP – Northern Ireland’s largest political party – MLA Paul Givan has seized upon the controversy and is attempting to introduce a Private Members’ Bill (known as conscience bill) into the Northern Ireland Assembly allowing religious groups and entities like Ashers to refuse to do business with those whose lifestyles they strongly object to. In other words, the proposed law says there should be a ‘right’ to refuse to provide services (and by analogy, to sell goods to people) if the providers believe this could compromise their religious beliefs.
There is a difference between not offering a service (or good) altogether or even in a particular way to everyone in the public (without discrimination) and not offering the same service to a particular group of public. The B&B case was different in the sense that there was a direct discrimination based on the customers’ sexual orientation. The reason why it is so important to ensure that businesses for profit should provide services without discrimination is that we can aim to remove all the probability of leaving one section of the society or another in a situation where they are discriminated against on one of the nine ‘protected characteristics’.
If Givan’s bill finds its way to become law, it would not only deal a serious blow to the anti-discrimination movement but also lead to a slippery slope for others to claim impunity from an obligation to treat fairly and without bias. For example, Muslim organisations and businesses may refuse to trade with non-Muslim or ‘deviated’ Muslim customers quoting their own perceived understanding of selected verses of Koran.
The blogger is a lawyer and a human rights activist. He can be contacted at firstname.lastname@example.org. He tweets from @Zaakbar and @ZaakbarLaw