Landing this week in the middle of Australia’s religious freedom wars was the latest “wedding cake case”: a judgement by the Supreme Court of the United Kingdom, which found in favour of a bakery that refused to make a same-sex marriage cake. This was excitedly reported here as another big win for the Worldwide Congress of Homophobic Bakers.
Actually no, it wasn’t. But it is worth a look, coming as it does after the US Supreme Court had its own wedding cake moment a few months ago. It is surely a matter of time before we have ours.
What happened in the UK case?
The UK case involved Gareth Lee, a gay man who volunteers with LGBTQI organisation QueerSpace in Belfast. In 2014, he was going to a party to celebrate Northern Ireland’s anti-homophobia week, and decided to take a cake. He went into Ashers Bakery, run by Daniel and Amy McArthur, a devoutly Christian couple. He asked for his cake to be iced with a picture of Bert and Ernie (whose sexuality is a whole other debate) and the words “Support Gay Marriage”. The McArthurs refused, on the grounds that they were a Christian business and objected to the message.
The law in Northern Ireland prohibits direct and indirect discrimination on the basis of sexual orientation. If the McArthurs had refused to bake Mr Lee’s cake because he was gay, or because anyone else was gay, that would be unquestionably illegal.
The Supreme Court pointed out, however, that the McArthurs had made it clear that they did not refuse to bake for Mr Lee or the party he was attending. Their objection was to the message on the cake. They would have refused that request, they said, from anyone. If an extremely adorable eight year old girl had come into their shop and asked them to bake a cake for her birthday with (the definitely straight) Barbie and Ken on it along with the words “Support Gay Marriage”, she would have received a polite rejection.
Fair enough too. There is a wide distinction between the appropriately illegal act of a business refusing service to a customer because of their gender, sexual orientation, race, etc, and the right of the business to say no to doing things which compromise its own values. The key point is that that scruple must be attached solely to the act — not the characteristics of the person asking.
What about the US?
The US situation is, of course, nowhere near so clear-cut. The recent “Colorado cake case” involved a straight-out refusal by baker Jack Phillips, owner of the Masterpiece Cakeshop, to bake any cake at all for a same-sex wedding. The Supreme Court held 7-2 that he was constitutionally entitled to do so.
The issue in the US is that the laws prohibiting discrimination must compete with the protected freedom of religion and, more potently, freedom of speech. The Court tied itself in several knots over this, but the result was confirmation of the curious notion that the baking of a cake is an act of free expression in itself. It didn’t matter that there were no words involved; Phillips cannot by law be prevented from refusing to bake for a gay wedding because, as Justice Neil Gorsuch explained:
To suggest that cakes with words convey a message but cakes without words do not … is irrational … Words or not and whatever the exact design, it celebrates a wedding, and if the wedding cake is made for a same-sex couple it celebrates a same-sex wedding.
Although in fairness the word “irrational” has acquired a quite different meaning in America in recent years from how we would still tend to understand it here.
What would happen here?
What of Australia’s own inevitable wedding cake case, if and when it comes? The anti-discrimination law here is relevantly the same as in the UK and Colorado: a bakery may not refuse service to a same-sex couple or their same-sex wedding; to do so would be unlawful discrimination.
But the distinction between a cake with a message, and one without, will hold here. There is no prospect of our High Court following the US Supreme down their weirdo rabbit hole; it will, like their lordships in the UK, recognise that, sometimes, a cake is just a cake.
Obviously though, we must ask ourselves “What would Scott Morrison do?” Will he say, as he does each time he is asked whether religious schools should be able to expel gay kids, “it’s the existing law”? Or will he find that the existing law won’t do, when those gay kids grow up, get married, and want a cake?
Food for thought.
Well, apparently Amy McArthur accepted the order and took the money in order to ‘avoid embarassing’ the customer. They later decide to cancel the order, and offered to refund the money.
If the order was refused initially, i wouldn’t have any problem with it. But surely they’ve entered into a contract by accepting the order and taking the money? Shouldn’t they be required to fulfill the contract?
Are there so few cake shops in England and the USA that this ‘cake business’ becomes an issue?
Why not have a law invented enably all birthday cakes to be their present colour of a sponge cake, and all wedding cakes have to be black? All messages to be white and cost 100% of the cake price. And long may the truly precious have to explain things to their fellow bakers.
No, it’s just an example that has stuck in mind for Team Bigot and they’ve felt the need to go around looking for cake-makers they can fund in legal challenges. People who run fruit shops can count themselves lucky that it was “cake for a same sex wedding” which stuck in mind and not “fruit basket for a same sex wedding”.
I personally think, rather than using the court system, people should use social media and not use any bakery that refuses service, for anything, in other words shun them. After all what’s good for the goose…
Of course that would only work where there’s more than one bakery is available.
…because publishing provocations to whip up popular sentiment and bully people we don’t like is only ever used by good people for benign ends, and is far more accountable than a legal system undergoing constant evidence-testing, debate and review. 😉
With all due respect, Ruv, in a case of baking-based, anti-gay discrimination I’ll stick with shunning. Let the dollar in your pocket do the talking.
I’m not saying that you always shouldn’t use commercial sanctions Bref. I think there are times when it’s appropriate and I’ve even advocated them before here myself.
But I draw your attention to the method you proposed: whipping up anger up via social media.
Do you also agree that social media is among the poorest-quality information we presently receive? Would you therefore agree that using social media to demonise a business-owner for untested allegations could do more injustice and result in more harm than the business-owner actually did (if indeed the business-owner did any?)
Would you further agree that the public demonisation of only suspected bigotry is low-hanging fruit and unlikely to result in civil discourse or rapprochement, that establishing a tradition of attack-first based on untested allegation is an example of systematic bullying, fundamentally cowardly in that it’s anonymous, lacks any sense of negotiation or public accountability, and easily abused?
Even if commercial sanctions were appropriate (and they might be), is social media really the best way to test and invoke them?
Fair enough Ruv. I guess I used the term ‘social media’ in the wrong way (my age is showing). I didn’t mean trumpian demonisation and whipping up a crowd against said baker. I meant that one could inform family and friends who would tell their friends, etc.
Ah. The old school way, where it’s transparent for who says what.
It can still be misguided, but is way more accountable.
No arguments here, Bref. 😉
It’s a question I constantly wrestle with: what indeed would Smugmo do? Nothing good from my POV.
The cake issue is an absolute disgrace. But so is the issue of forcing children to go to the “Safe Schools” program. I can’t believe anyone would discriminate against a questioning child. But i don’t believe we need to force this issue on all school children. Like sex education it should be dealt with by the family and a genuine anti bullying program should be instituted in schools to protect all children fat, thin, questioning, slow learners, disability etc.
This sounds like it comes from the commenter who was so fierce in the last couple of days about demanding the right for religious nutters to protect marriage being sullied by gays – changed the handle, just not very much.
The give-away was “forcing children to go to the “Safe Schools”” – egad and forsooth, the very thought.