Is that a discriminatory cake or a meringue?

Meanwhile, for those readers with any knowledge of the Glasgow banter, and who have been following the recent “Gay Cake” controversy, the answer is yes, you are wrong. At least that is what the Supreme Court emphatically told the judges of the Northern Irish appeal court.

The cake

The background is, of course, the recent decision in relation to Ashers Bakery in Belfast refusing to produce a cake with Sesame Street characters Bert and Ernie proclaiming “Support Gay Marriage.”

This was not due to what may appear to have been legitimate concerns about copyright infringement, instead the reason for the refusal was the bakery owners’ evangelical religious views.

It is important to note that (whatever side of the argument you agree with) the owners genuinely believed gay marriage to be wrong on the basis of certain biblical teachings. Accordingly they did not want to produce a cake bearing a slogan with which they fundamentally disagreed.

As a result, despite initially accepting the order they later declined and returned the purchase price – which we are told was around £35.

The claim

The aggrieved customer believed this to be a breach of Northern Irish equality legislation, which for current purposes is broadly equivalent to the Equality Act. In particular, the customer, who is gay, maintained that he had been discriminated against on the grounds of his sexuality.

At first instance he was successful, and a Northern Irish court awarded him £500 (by my reckoning enough for 14 cakes with maybe a Danish pastry or two thrown in). The bakery owners appealed unsuccessfully to the Northern Irish Appeal court and then, this time successfully, to the UK Supreme Court.

The Supreme Court

The Supreme Court’s finding in favour of the bakery has given rise to much comment. As is the norm, a lot of this is misleading and it is worth reading the judgment itself.

What is not at issue is that if the bakers had refused to serve the customer because he was gay that would be unlawful.

However, the Supreme Court held that was not what happened here. Instead, the bakery would have refused to produce the cake irrespective of the sexual orientation of the customer.

In short — it wasn’t the customer, it was the message.

The fact that support for gay marriage goes well beyond those who are gay was important. After all, you do not have to be gay to be an advocate of gay marriage. Accordingly, refusing to bake the cake was not equivalent to refusing to serve gay people, as the bakers would have declined the same request from a heterosexual customer.

The reaction

I can see the logic in this, and I also appreciate there are important issues of freedom of speech (which has been long held to include a right not to voice opinions you do not hold).

Despite this, I also appreciate the disquiet felt by many about the decision. For example, could religious or political views be used in the future to excuse instances of blatant bigotry?

It is worth reminding ourselves then that the decision was very much based on the facts of the case, and in particular the finding that the bakery owners had no issue with gay customers.

Accordingly, it can be immediately distinguished from the earlier controversy of B&B owners refusing to provide a gay couple with a double bed. That was also suggested to be on religious grounds but the reality was the owners were refusing to serve people because they were gay. Such a refusal remains 100% unlawful.

Workplace application

The bakery case was also based on the equality laws applying to the supply of goods and services.

I would be very cautious about seeking to apply this to the workplace. For example, it does not support an employee who chooses to express views at work (say) advocating the moral superiority of heterosexual relationships.

This could clearly cause real offence to people of any sexual orientation who reject that view, and in turn lead to claims of harassment.

Further, courts have to be on the lookout for potential discrimination, and this can involve a subtle analysis. It could well be that there will be cases where what is said to be a political or religious comment is in fact held to betray an underlying discriminatory attitude.

So, while this is going to be seen by some as a victory for freedom of speech, in my view the old rules about avoiding discussion about religion and politics remains a very sensible one. At least in the workplace.

Meanwhile back to the title — the joke should be read in a Glaswegian accent:

“A bloke goes into a bakery and, pointing to the display, asks ‘is that a doughnut or a meringue?’ The baker replies ‘no you’re right enough, it’s a doughnut.'"