Ashers Baking refuses order for gay engagement cake

Ashers Baking is in the news again: the Belfast Telegraph reports that Ashers has refused to make an engagement cake with a same-sex marriage slogan. Grainne McCann ordered the cake to celebrate the engagement of her friends Joe Palmer and Andy Wong and paid for it online, only to have her order rejected the next day. She told the paper:

“The wording we requested was ‘Gay marriage rocks! Happy engagement, Andy and Joe! Lots of love xxx’. We were thrilled when Ashers accepted our online order, and full payment of £23.40 plus £20 p&p, but the next day they sent the cancellation note and a refund. My gut instinct told me the cake was refused because it celebrated gay marriage.”

She then ordered a christening cake for her goddaughter Leila – which Ashers made without demur.

Ashers refused to comment; however, on the build a cake section of its website Ashers outlines the following restriction in its terms and conditions [scroll down].

“5. Copyright

You must not send us any images or any other material, or any content within such images, which contain any threatening, defamatory, blasphemous or pornographic material, or show any kind of child abuse, or are racially offensive or abusive of any religion, or likely to incite hatred against any person or group, or are otherwise criminal or offensive in the minds of reasonable people, or are obscene or menacing or harassing in any way, or breach any applicable law”.

Whether the matter is taken any further remains to be seen: Ms McCann says that “My friends and I don’t want to sue”.

There is still no news on the earlier issue of a possible appeal to the Supreme Court against the decision in Lee v McArthur & Ors [2016] NICA 29 – noted here. There was no reference to the case in the most recent UKSC Permission to Appeal results – January to March 2017 and we continue to watch this space…

[With thanks to Daniel Hill for alerting me to the press report.]

Cite this article as: Frank Cranmer, "Ashers Baking refuses order for gay engagement cake" in Law & Religion UK, 1 May 2017, https://lawandreligionuk.com/2017/05/01/ashers-baking-refuses-order-for-gay-engagement-cake/

20 thoughts on “Ashers Baking refuses order for gay engagement cake

  1. It does seem to be a form of religious persecution for the courts to impose a requirement on any tradesperson to carry out work that he or she finds distasteful for reasons of religious beliefs and sensibilities. A business person is not a slave to the general public. Also I feel it is a form of harassment for people to keep trying to place orders for such cakes knowing that the bakers object to baking them. Even if I run a “rent a mob” organisation I surely do not have to accept commissions to take part in demonstrations that I do not agree with. A baker’s shop is not a “rent a mob” organisation. it is an important aspect of personal freedom that taking part in political demonstrations is entirely voluntary. it is not a breach of contract to refuse an order – there is no contract until the order is accepted, and if the order is placed online it does not become contractual until a human decides to accept it. Freedom of contract is being interfered with and that is wrong. You rightly draw attention to the copyright paragraph in their terms and conditions as the placing of orders the bakers are known to find unacceptable could be an attempt to stir up hatred against people on the basis of their religious beliefs.

    • True: it cannot be a breach of contract to refuse to make a contract in the first place. But this isn’t about breach of contract – it’s about discrimination in the supply of services. Anyway, whether or not there was, in fact, unlawful discrimination in this case is something we’ll only find out if it ever gets to court.

  2. There has been a judgment which found the bakery in breach of anti-discrimination law.
    As a public-facing business, it has to accept the business of anyone, regardless of their personal views or beliefs, sex, sexuality or skin-colour.
    If we start to allow traders to discriminate, where will it end?
    Will Jews, Blacks and Irish find themselves to be unacceptable customers?
    How would consumers of religion like it if their beliefs were held against them?

  3. IF a Christian goes into a Mosque and orders two ham sandwiches and claims discrimination (when it doesn’t arrive by mail order), who’s to blame for insult?

    If we ignore traditional values of intelligence, we end up with stupidity:- (no discrimination means that (IF) you cannot discriminate (AT ALL) then you cannot claim any ‘intelligence’; to discriminate between obvious facts and differences which (in this case ) is largely that of of differing opinion and insult. Court arguments (right or wrong) is that which distinguishes the UK courts in that over extended rulings can be over-ruled and set aside (by later) high court judgments and amendments (missing in all EU legislature).

    We have traditional freedom of rights based on far older conflicts – ‘The Magna Carta’ – the right of being a free man (which gays are now free to practice ther beliefs) but should not undermine those that have more faith in more traditional values and tastes. The previous Northern Ireland High Court judgement that Cakes should be made for gay people (in particular) undermines impartiality, preferences and intelligence.

    In the end we all end up being less intelligence and for many this is a very silly argument about cakes that should never have gone to court as a test case. Why are there no gay bakers who specialise in gay cakes (as there obviously is such a demand in Northern Ireland but none anywhere else)! In my first example of the ham sandwich, there is no legal dispute as it recognised (by the courts) as being an insult to (some) Muslims. If we are to agree on that principle, the case is identical.

    • Mosques don’t provide commercial services to all-comers: bakers do. The law in Northern Ireland requires that service-providers do so without discrimination. The key passage in Morgan LCJ’s judgment is probably this at [100]:

      “Neither the 1998 Order nor the 2006 Regulations treat the appellants less favourably. The legislation prohibits the provision of discriminatory services on the ground of sexual orientation. The appellants are caught by the legislation because they are providing such discriminatory services. Anyone who applies a religious aspect or a political aspect to the provision of services may be caught by equality legislation, not because the legislation treats their religious belief or political opinion less favourably but because that person seeks to distinguish, on a basis that is prohibited, between those who will receive their service and those who will not. The answer is not to have the legislation changed and thereby remove the equality protection concerned. The answer is for the supplier of services to cease distinguishing, on prohibited grounds, between those who may or may not receive the service. Thus 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 belief in relation to sexual orientation.” [my emphasis].

      Whether the current law is a good thing or a bad thing is clearly a matter of opinion – but I cannot begin to believe that Morgan LCJ got the law wrong.

      • ‘Mosques don’t provide commercial services to all-comers:’ I am not sure about that(!) In London as in many large cities HALAL is on most local shops (I cannot avoid it). These are equally commercial enterprise and would also refuse to make such cakes under Sharia law it is effectively banned. The UK law has adopted that discrimination as HALAL’ is widely adopted in cakes and in meat. I can shop elsewhere of course, and i thjink that;s the point I wanty to make. We all have choices in life. And this ruling (if imposed) will mean less choice.

        This I think is not a matter of opinion (as you say) or legal interpretation. It’s a fact of life, and often death appled on the backend of an EU directive which fits uncomortably with UK traditions which do not offend anyone (even Muslims).
        So I disagree, the imposition of this case ruling (as law) is not a great gain but an opinion of two opposing views of tradition versus progressives.

        • It is not a matter of opinion but a matter of law.
          The cake maker is in breach of the law.
          That is all that needs to be said on this matter.

          • What I wrote was “Whether the current law is a good thing or a bad thing is clearly a matter of opinion”: in a democratic, liberal society, surely people are free to criticise the state of the law as much as they like. What the law actually says, however, is another matter entirely; and I assume that Morgan LCJ’s statement quoted above is an accurate exposition of the law as it stands.

            As it happens, I agree with the judgment of the Northern Ireland Court of Appeal – but a lot of people don’t, and they are surely as entitled to their views as I am to mine.

          • I was not commenting on what you had written but on what Philipus had written.
            That is why my comment was shown as a Reply to his comment.

          • This case is oversimplified by the irreligious. To require a provocative inscription on a cake seems to have been either unfortunate or possibly intentional. Someone may have acted as agent provocateur. Could this have been a case of entrapment?

            Geoffrey Hartwell

          • But is there a civil wrong of entrapment? Not being a specialist in tort law (least of all in Northern Irish tort law) I thought that entrapment related to encouraging someone to commit a criminal offence.

  4. It seems to me that the Northern Ireland Court of Appeal should have distinguished between services which are “normal” – such as the sale of loaves of white sliced bread, or unsliced wholemeal, etc where discrimination on the basis of sexual orientation would obviously not be acceptable, and discrimination where the work requested involves a particular bespoke artistic or artisan product, the supply of which is not such a regular daily occurrence and which requires the baker to engage in a form of political and religious expression, which it is his right to refuse to engage in. It is not normal in any sense for a baker to be expected to do this and so the decision was clearly wrong as a matter of law.

    The Court should have applied the words in section 5(1)(b)
    “by refusing or deliberately omitting to provide him with goods, facilities or services of the same quality, in the same manner and on the same terms as are normal”.

    The LCJ himself stated “In the present case the appellants might elect not to provide a service that involves any religious or political message”. This recognises that it was the advertising of a service that was deemed to make the bakers liable for refusing to provide the service, so this was treated as a contract with all the world as in Carlill v The Carbolic Smoke Ball Co. So the contractual position is not irrelevant. The bakers did not advertise that they would include any desired religious or political message on the cakes, so there was no breach and their contractual and personal freedom should not have been interefered with. Mercantile matters are governed by mercantile law and the Courts should observe mercantile law in such matters. .

    • Michael: even under contract law, the baker is in breach.
      The Carlill case – as you yourself point out – established many of the basics of contract law and the baker is in breach of contract, despite the technological differences that apply today compared to the time of the original smoke ball case.

      A fully legal contract was established which the baker then unilaterally chose to break.
      The baker is in the wrong in this particular case both in contract law and in discrimination law.
      You and others may twist and turn all you like but none of you can overcome the illegality of the baker’s actions.

      • John
        Thank you for your response but I do not see how you can conclude that there was a contract. In between paragraph [5] of the judgment when the customer made an offer to enter into a contract and paragraph [6] when the baker rejected the offer, you think somehow a contract was concluded. If there had been a contract surely the action would have been for breach of contract which would be much easier to argue.

        • Civil procedure (particularly in Northern Ireland) is something I know very little about, but might not the difference be that a potential plaintiff in a discrimination case might get some degree of help from the Equality Commission for Northern Ireland, whereas the chance of legal aid for a simple case of breach of contract would be just about zero?

        • If you read the article above, it states ‘Grainne McCann ordered the cake to celebrate the engagement of her friends Joe Palmer and Andy Wong and paid for it online, only to have her order rejected the next day.’
          Note: ‘the next day’.
          There was intention to create a legal relationship, an offer, an acceptance, both parties had capacity to contract, there was consideration and a payment was made.
          The contract therefore was fully made in law.
          It was the baker who breached the terms of the contact, not Grainne McCann.
          It is, therefore, the baker who is guilty of breach of contract.
          Additionally, the baker is in breach of non-discrimination law too.
          However you choose to cut the cake – so to speak – the baker is in the wrong.
          It is not as though there is no previous precedent for the case, is it?
          Daniel and Amy McArthur previously lost a similar case in October 2016.
          Northern Ireland’s Lord Chief Justice Sir Declan Morgan ruled – inter alia – “This was a case of association with the gay and bisexual community and the protected personal characteristic was the sexual orientation of that community. Accordingly this was direct discrimination.”
          If the baker is not prepared to offer the same service to all members of the public, they should find another occupation.
          One final point: the Copyright Clause (5) shown above cannot be relied upon for rejection of the order, as the proposed wording on the cake did not meet any of the criteria cited – even assuming they were lawful in the first place.
          Discrimination against homosexuals is no longer lawful.
          You – and the baker – will have to learn to live with that.

  5. I wonder what would happen if a member of the Orange Order went into a Catholic bakers in a Catholic area of Northern Ireland and ordered a cake with a big orange border around it and with the slogans ‘Remember 1690’ or ‘No Surrender’ in big letters on it, and the Catholic baker then refused the order as it was against the baker’s (republican) political beliefs.
    Just saying, is all.

  6. There are two faults in the Asher’s judgments.

    The lesser fault is that it is clear that there was direct discrimination on political grounds, which is unlawful in Northern Ireland, but only clear that there was indirect sexual orientation discrimination. I.e. the “association” argument used to upgrade the orientation discrimination from indirect to direct in the two judgments so far in the claim, is technical, contrived and weak. Most members of the public either do not understand the association argument, or do not believe it.

    The greater fault is in the finding of objective fact that making a cake with an evil political slogan wasn’t *objectively* evil, because it wasn’t an expression of “support” for the evil slogan. That must surely be wrong, for one of two reasons.

    Either the law is that printing the pamphlet or icing the cake makes one an accomplice, because there are precedents of owners of printing presses being sentenced to death, without any evidence that they agreed with the treasonous pamphlets that their customers paid them to print.

    Or the law is that conscience and belief is subjective, not objective. We don’t hold pacifists to proof that joining the army is objectively an expression of support for war. We accept that their subjective consciences tell them that for them it would be wrong to join the army, and that it is not the court’s job to rule on whether their consciences are right or wrong in this matter, applying an objective test of what is right and wrong that overrules each individual’s subjective conscience. Yet that is exactly what the courts did, in Asher.

    An agent provocateur is likely one day to obtain an injunction against a discriminating baker, enjoining him to ice a “gay” cake. The baker is inevitably going to end up jailed for contempt of court, for obeying his subjective conscience, rather than the state’s objective conscience and its consequent injunction. He will only be able to purge his contempt by promising to comply with the injunction. We shall have to be content to feed the baker until his death in prison from natural causes, however many decades this impasse drags on. And for what noble purpose have we sunk to this?

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