The Gay Cake Debacle: A Rejoinder to Robertson

Free Church of Scotland Moderator, David Robertson, has written a piece concerning the now infamous Ashers Bakery “gay cake” case.

You can read the Ashers judgment here:

https://www.courtsni.gov.uk/en-GB/Judicial%20Decisions/PublishedByYear/Documents/2015/%5B2015%5D%20NICty%202/j_j_2015NICty2Final.htm

You can find Robertson’s article here:

http://www.premierchristianity.com/Blog/Bake-me-a-Cake-and-Mark-it-with-B-for-Bigot

Upon reading this, I tweeted in frustration:

Yet another commentator who hasn’t bothered to read the judgment….”

To which Robertson replied:

yet another tweeter who presumes ignorance. Feel free to answer the points made in the article. If you can.”

Challenged extended!

Challenge accepted!

Robertson’s central point is that the ruling of the judge is an example of double standards being imposed. But before we get to that Robertson makes a few comments:

He states: “Ashers did not refuse a gay person a cake. They refused to bake a cake with a message supporting gay marriage. And that changes everything.” This is flat-out false; it doesn’t change anything, not under the law. Ashers offered a service whereby a customer could design their own cake and Ashers would bake it and print the design. In this case the customer – a gay man – chose a slogan – “support gay marriage” – which is defined as “political opinion” under the law, and Ashers, after first accepting the order, refused to follow through. In other words, they discriminated on the grounds of sexual orientation and political opinion – both protected categories in Northern Irish law, made abundantly clear in the judgment Robertson claims to have read. Moreover, Robertson ignores the fact that in law Ashers is a commercial business which exists for profit. Commercial enterprises are not legally identical with their owners. Ashers therefore doesn’t have a religious conscious which is protected by the European Convention on Humans Rights, and it isn’t a religious organisation which can appeal to certain legal exemptions. Again, the judgment makes this abundantly clear.

Next, Robertson asks:

Does this ruling now mean that a Jewish baker should be forced to bake a cake with a Swastika on it for the BNP (neither the sign nor the party are illegal in the UK)?”

If Robertson is speaking of the wider UK, then the answer is: no, because political opinion is not explicitly a protected category in England, Scotland or Wales. In any event, a Jewish baker could quite easily adopt a policy – which Ashers didn’t do – of rejecting all political or religious slogans, which is entirely legitimate under Northern Irish law.

Robertson’s other example also betrays a misunderstanding:

Would the equalities commission sue a Muslim baker who refused to bake a cake with a cartoon of Mohammed on it, for a Charlie Hebdo party?”

Firstly, Robertson incorrectly identifies the Equality Commission as the plaintiff in such cases. In the Ashers case it was not the Commission who sued – it was the customer, which again should be abundantly clear from the judgment. In any event, since a picture of Muhammad would not represent anyone’s genuinely held religious belief, political beliefs, or identity, it would be difficult to make a case for discrimination here. And, of course, a Muslim-owned bakery is perfectly entitled to refuse all religious slogans (and probably would).

Robertson’s misunderstandings continue to pour forth, as he claims that “it is ridiculous for a Christian who thinks that Same-Sex Marriage is against the Word of God to be compelled to bake a cake with a message supporting it.”

Again, this isn’t true. Remember, the issue is not with a private individual but with a commercial entity. Anyhow, Ashers cannot be compelled to bake a cake with a message supporting same-sex marriage. It has been announced today that Ashers are now only printing birthday and Christening cakes – and no one can compel them to put “support same sex marriage” on a cake. Why? Because they no longer put any such slogans on their cakes. However, the problem before was that they did offer a service, which they then denied to a gay man on considerations pertaining to sexual orientation and political opinion.

Robertson then points out that in his view there was no discrimination in this case because “a heterosexual asking for such a cake would also have been turned down.” However, the judgment makes it explicit that this is not relevant. After citing a number of case law authorities the judge said: “it is my view that….the correct comparator is a heterosexual person placing an order for a cake with the graphics either “Support Marriage” or “Support Heterosexual Marriage.”” The judge deemed it clear that Ashers would have made such a cake for a heterosexual, and thus were making decisions based on sexual orientation in refusing Mr Lee (a homosexual) his cake with the slogan “Support Same Sex Marriage.”

Now beginning to lose the run of himself, Robertson claims that the real discrimination in this case is against “the Christian baker who is being told he will have to close down if he is not prepared to provide cakes with messages that contradict his beliefs.” Again, this is simply flat-out factually incorrect. The baker was not told to bake cakes with slogans contradicting his beliefs or close down. Remember, the entity in question is a commercial “for profit” business – which in law does not have religious beliefs that can be protected under the European Convention of Human Rights (as the judgment – which Robertson has read – makes abundantly clear). In any event, as I’ve already explained, Ashers will continue to bake and sell cakes and will not have to print any slogans with which they disagree.

Anyhow, to the crux of Robertson’s point: “There is a double standard in British society.”

To demonstrate this double standard Robertson mentions the example of The Scottish Christian Party (SCP), who during the general election had their election leaflet rejected by a printer because the printer, says Robertson “did not agree with the messages on it,” and that “The messages were not illegal but nonetheless they refused. Could they not be sued for the same reason?” Robertson laments that “The fact is that there is a double standard in British society just now. The law is being interpreted and enforced in one way for those who represent the cause celebres of our culture, and yet used in a completely different way for those who don’t agree with the shibboleths of our elites.”

Now this baffles me entirely. Robertson is comparing apples with oranges. There are several significant disanalogies between the two cases. Firstly, the Ashers case involved a private individual with rights under the European Convention. The SCP is a political party which, like a commercial business, enjoys no such protection. Secondly, the two cases emerge in different legal jurisdictions! It’s astounding that Robertson hasn’t noticed this fairly obvious fact. Ashers were brought to court under the following pieces of legislation:

The Fair Employment & Treatment Order (Northern Ireland) 1998, and the Equality Act (Sexual Orientation) Regulations (Northern Ireland) 2006.

Both pieces of legislation are mentioned in paragraph 1 of the Ashers judgment (maybe Robertson skipped paragraph 1?). Notice that both are uniquely applicable to Northern Ireland. They do not apply to Scotland. This clearly isn’t an instance of the law being interpreted and enforced differently in one case than another. It’s a case of different law applying in different legal jurisdictions! Perhaps Robertson misunderstands the nature of the United Kingdom. Our country is the United Kingdom of Great Britain (England, Scotland & Wales) and Northern Ireland. There is some legislation that applies to all jurisdictions, some applies fully to some jurisdictions and only partly to others, and some that is only applicable to one jurisdiction (which happens increasingly these days since Northern Ireland, Scotland, and Wales have their own regional assemblies with certain legislative powers). So, the legislation in the Ashers case simply doesn’t apply to Scotland. Scotland has its own equality laws. Note further that in the case of the SCP no case was brought before the courts, so unlike the Ashers case there was no legal interpretation or enforcement taking place at all. So, why didn’t the SCP case go to court? Simple: under Scottish law, political opinion is NOT explicitly protected as it is in Northern Irish law. The reason for political opinion being protected in Northern Ireland traces back to our political tensions and the grief that has come from political disputes here. Clearly Robertson has made a blunder. The law simply isn’t “being interpreted and enforced” differently in different cases, and certainly not to suit some grand anti-Christian or politically correct conspiracy. The laws in each jurisdiction are simply different, and thus cases that occur in Northern Ireland will be treated differently.

[It’s worth noting in passing that the Scottish Christian Party member in question – John Cormack – gives a slightly different reason for the rejection than Robertson gives. Cormack says, “The printer I had lined up refused to print the leaflets for me because they have a policy of not printing material that might offend people.” He claimed further the printer was afraid to print the leaflets – not that they refused do so for the reason Robertson claims “[they] did not agree with the messages on it.” Given that the Scottish Christian Party is borderline homophobic – it’s election material spoke of REAL marriage – capitals in the original – as opposed to, presumably, “fake” (though legal in Scotland) same-sex marriages – it is entirely legitimate for a printer to err on the side of caution and not print material which is potentially inflammatory or homophobic. Anyhow, I digress….]

I agree with Robertson in his desire that our Christian freedoms not be eroded, but what he splendidly overlooks is that he lacks no right or freedom whatsoever that a non-Christian enjoys. The law applies equally to Christian and non-Christian alike. And this was upheld by the Ashers judgment.

Stephen J. Graham

PS

On Robertson’s own blogsite he reproduces this article but includes two notes:

“1). The man who brought the law suit is a member of a homosexual group called queer space who just happens to visit a bakery which was well known for its Christian owners, miles from his hometown. All entirely coincidental!”

Again, Robertson is showing his ignorance of the case. Gareth Lee had previously been a customer of Ashers, because it was near the office where he worked. Coincidence? No. Conspiracy theory? Maybe….

“2) SSM is illegal in Northern Ireland. The judge is supposed to uphold the law yet he finds that a bakery which refused to put a message of support for something that is illegal, are the ones breaking the law! The law is sometimes an ass!”

Another misstatement. SSM is not “illegal,” it’s simply that there is no legal provision for it. Murder is illegal. Theft is illegal. SSM is not illegal. Moreover, the judge was not a “he” – the judge was Isobel Brownlie – a she.

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17 Comments

Filed under Discrimination, Equality

17 responses to “The Gay Cake Debacle: A Rejoinder to Robertson

  1. Stephen,
    Congratulations on this well-structured analysis of the issues in that case. You are absolutely right. David Robertson is absolutely wrong. Nobody who has read and understood the judgment could think otherwise.

    • Thanks for your kind words Frances. Whilst, as you know, I’m a Christian, I frequently find myself in opposition to other Christians when it comes to political/moral questions such as this. In this case I’ve been very disappointed at the misrepresentation amongst Christian commentators concerning this case, and Robertson’s article was a good example of that.

      SJG

  2. Rather a nit picking rebuttal of the principles outlined in DRs article… Can you really distinguish the individuals running a small business from the business as an entity, especially a small business? If you do so, how can we say, in any sense, that a company acts but that the individuals representing or working for that company do not? If that is the case why did the Icelandic Government succeed in prosecuting bankers? The individual’s actions were seen as part and parcel of the institution’s actions. And the institution was pretty big. Regardless of the legal ins and outs or factual niceties the principles involved in the case are still problematic. An individual’s freedom to demand services overrides an entities right not to provide it on grounds of conscience? This will cause huge problems for everyone. If I asked a baker who was gay and married to supply a cake with a slogan opposing gay marriage, what would they do? To insist they do so would in itself be unkind, a violation of their deeply held beliefs. So I would not. If Mr Lee had any kind of human sentiment why did he pursue it further? Why did he not go to a different baker, understanding and respecting the company’s feelings? Once we push mutual respect out of relationships, even commercial relationships, we are in deep doo doo.

    • Thanks “revsimcop” for taking the time to respond. I don’t ordinarily get into debate, but I wanted to make a few quick responses. Apologies in advance if I sound rather abrupt!

      1. I’m a little bit disappointed that you accuse me of nit-picking. Not only did I respond to Robertson’s misunderstandings of fact and of law, but I dealt – fair robustly – with his central claim, namely that there is a double standard in British law. I can’t see how that is remotely “nit picking.”

      2. “Can you really distinguish the individuals running a small business from the business as an entity, especially a small business?”

      Yes, and the law does so. A business is a commercial entity – existing in the public square to make a profit. Certain laws apply to business that do not apply to private individuals. When Daniel McArthur – owner/director of Ashers – acted as he did, he acted as a representative of Ashers, not as a private individual. As such the rights he would enjoy as a private individual do not apply to the commercial entity of Ashers Bakery.

      3. The case of Icelandic bankers is even less relevant as a comparator than Robertson’s case of the Scottish Christian Party. In fact, the bankers you refer to where treated as having acted criminally, and thus were prosecuted. The Ashers case was a civil case – not criminal.

      4. You said “An individual’s freedom to demand services overrides an entities right not to provide it on grounds of conscience?” I’ve already explained in my response to Robertson – and it is clear in the judgment – that a commercial entity does not enjoy protected rights under the European Convention.

      “If I asked a baker who was gay and married to supply a cake with a slogan opposing gay marriage, what would they do?”

      This judgment makes it clear that they could not refuse unless they have a policy of not printed ANY political/religious slogans. Again, I’ve already explained that this judgment does not mean we can demand bakers to act against their conscience.

      6. “If Mr Lee had any kind of human sentiment why did he pursue it further? Why did he not go to a different baker, understanding and respecting the company’s feelings?”

      Lets say a bakery advertised – as Ashers did – that a customer could build and design their own cake – no exception made in the terms and conditions. Lets say this bakery is owned by a KKK sympathiser. A black man walks into the bakery and orders a “fight racism” cake for Martin Luther King day. He is refused because of the owners “deeply held religious beliefs.” Would you tell that black man that if he had a shred of decency he should just accept the owners feelings and go elsewhere?

      SJG

      • Stephen, a word of caution: You say you don’t ordinarily get involved in debates? So, what, you just set yourself up as the arbiter of truth and reason? You need to be careful that you don’t destroy the edifice of your reasoning by concluding with nonsense. Your answer to point 6 is ridiculous. Perhaps you felt you were employing some reductio ad absurdum? If so, this still needs to use reason in order to work. A member of a militant faction cannot be compared to a member of the national religion of his country. In fact, ironically, you have pointed out the militant nature of the gay marriage lobbyists and confirmed the lack of decency of Mr. Lee, who made his request in full knowledge of the circumstances. You have also strengthened the reasoning behind the belief that the law is an ass.

      • John, thanks for responding. A brief response:

        “You say you don’t ordinarily get involved in debates? So, what, you just set yourself up as the arbiter of truth and reason?”

        No, I don’t have a lot of spare time. Simple.

        As for your comments on point 6, you’ve went and missed the point. The issue is whether there should be a conscience clause for people like Ashers. My point is how we make Ashers owners religious/political beliefs an exception to anti-discrimination laws, but not those of someone like a KKK sympathiser who believes in the racial superiority of white people. What principle do you have in mind that would allow Ashers to make themselves an exception but would still make anti-discrimination law enforceable? Or perhaps you think a KKK sympathiser should be allowed to withdraw such a service from a black man?

        SJG

  3. Mike Wilson

    Great legal argument, if you believe that secular law is the epitomy of morality and ethics.

  4. Pingback: Having your Cake and Eating It – A response to Stephen J. Greens polemic on the Ashers Case | The Wee Flea

  5. Law-man Steve

    Having read DRs response, he STILL doesn’t get it…and wow, check out his victim complex!! Anyhow, I’d love to see a response but to be honest (and I work in the law) these wasn’t much of him left by the time you’d finished! Well done!

    • I’ve just read Robertson’s response. So much so wrong. Where does one even begin? Anyone who disagrees with the judgment is of course entitled to argue against it, but first you have to know what the “it” is that you’re arguing against! DR has straw-manned his way through the whole thing.
      Why doesn’t he just admit his errors instead of stubbornly claiming to have got nothing wrong. The only mistake he concedes is the gender of the judge which,bizarrely, he sees as the unavoidable outcome of being “compelled” to use gender specific language. Yes, David. Or you could maybe have just applied your mind to the issue and checked whether the judge was male or female.

      • He constantly accused me of nitpicking, when I was simply pointing out certain factual and legal mistakes in his article. Plus I did address his central point, so I think the nitpicking charge is silly. Depressingly he merely repeats certain factual mistakes: eg, he insists Ashers were told to bake certain slogans or close down. Quite why he’s being so hard-headed about it mystifies me. Moreover, it really was classless to attempt to lay blame on me for the fact that he’s received abused from certain quarters. That was incredibly unfair, I think.

      • The irony is that DR presented this piece as being a corrective to those who were ignorant about the real issues (or should I, for the benefit of any SCP readers, say “the REAL issues”) in the case. There then followed a diatribe by somebody who manifested in every paragraph astonishing ignorance about…..the real issues in the case.

        Even if it were true that he had read the judgment (which is frankly difficult to believe, given that so much of his argument is based on advancing as if they were new considerations which had already been fully and painstakingly rehearsed in the court’s reasoning) his commentary on it was entirely misleading. Anyone who read DR’s post would conclude that the court had blithely pronounced that homosexuals were more important than Christians and that Christians were legally obliged, on pain of having their businesses shut down, to toe the gay equality line. In fact, it is painfully obvious from reading some of the comments on the post that that is exactly what most readers did think.

        I don’t want to turn this into simply an exercise in character assassination (although it has to be said that DR’s character always presents a tempting target in that respect) but as von Schiller said “Against stupidity, the gods themselves are helpless.” And dishonesty can present them with something of a challenge too.

  6. Roger Chilvers

    The fact that the law says or permits something in no way says that action is ‘right’ in any moral sense. SG may well be correct (I am not qualified to say) but that does not mean I cannot express any view that differs from that law though in so doing I would have to be willing accept the consequences. (See Acts 4:19). It is sad that Christians allow themselves to be polarised on a current controversial law rather than the real issues of whether actions are right or wrong according to God’s law.

    • I agree Roger that legality is different from morality. However, my response here was to David Robertson and his misstatements of fact and law. He claims I’m nitpicking against him but his central point was that the law is “interpreted and enforced” one way in one case (Ashers) and another way in another case (the Scottish Christian Party.) I think I’ve shown fairly conclusively that Robertson got it very wrong. Perhaps he meant to make a different point, but that doesn’t change that I accurately responded to the point he did make. Moreover, the case of Ashers gives us little reason to think Christians are being treated poorly by the law. They are treated equally and have the same rights as everyone else.

      SJG

  7. Alexander

    1) Why should a private business be compelled to support someone else’s political opinion? No-one was telling the customer that he could not hold his political opinion or express it; the business was merely saying they would not support him in his political expression. If it were the government who were trying to stop this gentleman from expression his opinion that would be a different matter; but for a private business to be compelled to support another’s political opinion is unjust.

    2) I also think it’s rather bigoted to assume this gentleman was homosexual purely on the basis of his wanting a cake to support gay marriage. This is why the judge was wrong when she said the correct comparison would have been a heterosexual asking for a pro proper marriage cake. I mean, that’s a convenient comparison for her, but it’s wrong. The fact is they would have sold the gentleman any other product, but this product they refused to sell him. Ergo, he was not discriminated against because he himself was gay, but because of the specific item he wanted. Do we want businesses to start making assumptions about their customers and treating them differently as a result? Clearly this judge does.

  8. Alexander,
    Have you actually read the judgment in this case? There is a link to it at the beginning of Stephen’s OP.
    In fact, have you even read Stephen’s OP? Your comments indicate that either you have not read it or not understood it.

  9. Pingback: More Gay Cake, Vicar? | counterapologistblog

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