21 May 2015

Make me a cake or I'll call the Police

Before I start, for the avoidance of doubt, let's get three things clear:

1. I'm not a Christian, and I find some elements of Christianity to be not only irrational but also immoral.

2. I'm not gay.

3. I fully support two people of the same sex being able to get married, just like two of the opposite sex, and I find fear or hatred of people because they are homosexual/lesbian/bisexual to be both irrational and immoral.

So from a libertarian perspective, the Asher's Bakery case in Northern Ireland is an interesting one.

The long and the short of it is that a gay rights activist in Northern Ireland asked a bakery to bake a cake with a pro-gay marriage slogan on it, and the bakery objected because the owners oppose gay marriage, because of their religious beliefs.

The court has ruled that refusing to bake the cake is illegal "discrimination".  What this ruling represents is a fundamental infringement on two rights:

1. Freedom of trade;
2. Freedom of speech.

I've had a few arguments on Twitter about this, with the usual leftwing identity politics advocates claiming this is a victory of "equality" over "bigotry" and that "discrimination" is wrong, and when I focus on the fundamental facts they get agitated, because the facts are very clear indeed.  Set aside the claim that Gareth Lee (the gay rights activist) was deliberating bating the bakery, or that an order had been made for the cake, then refused after it had been taken (Gareth Lee didn't claim a breach of contract after all).

The most fundamental freedom you have is the right to control your own body, which means your freedom to act or choose not to act.  That naturally extends itself to the right to decide whether or not you make something.  In this case, a cake.  If you associate freely with others to set up a business producing cakes and selling them to order, that's again a group of individuals co-operating in a formal manner to offer to make goods for others.  It's entirely voluntary.  It's an invitation to trade, but there is no obligation to do so.  Asher's Bakery could close down tomorrow, could choose to make only one type of cake or start baking biscuits instead.  This, is freedom.

That freedom should and must include the right to decline to produce a product, whether it be on religious, political or any grounds.  Freedom of trade is the right to refuse to trade with anyone, and not even have to give a reason.


Because the alternative is a form of slavery.  It is the idea that just because a producer has decided to produce, potential consumers have a right to demand this.  It is, as much as the petulent "progressive" left demands it, demanding a "right to a cake made by someone else".

There is no right to demand anyone produce anything for you, just as there is no right to demand you buy something whether or not you want it or not.  

No, you cry.  What if it meant more businesses said they wouldn't deal with gay customers? Or black customers? Or Jewish customers?  That would be the consequence of repealing the law on discrimination in trade.

Firstly, it works two ways.  I know I wouldn't shop at stores that refused to deal with customers on such vile grounds because yes, I don't like "homophobia" myself.   People could boycott, suppliers could boycott the bigoted bakeries.  In other words, the democracy of the free market would challenge bigotry.  Sure, some people would buy and supply goods and services, but in essence people's views would be expressed by their own freedom to trade, as it should be.  Let's be clear here, 

Secondly, people are free to set up competing bakeries, and bake themselves.  There are no specific legal barriers to entry in this market.   

Just consider what the implication of the law is, it is to force someone to bake a cake for someone else. 

Furthermore, let's consider what the objection to baking the cake was about.  The request was to bake a cake which had a slogan to celebrate gay marriage.  Asher's Bakery opposes gay marriage. However, Gareth Lee wanted Asher's Bakery to use its property and labour to express an opinion it disagrees with.  

Gareth Lee, of course, has freedom of speech.  He can and should feel free to speak, write or bake a cake if he wishes, to express his support for gay marriage.  He can also seek the services of another to do the same.  However, freedom of speech does not include any right to force another to provide you with a platform for your expression.  Just as Asher's Bakery can't force Gareth Lee to write a letter saying he opposes gay marriage, neither should Gareth Lee be able to force Asher's Bakery to bake a cake to celebrate it.

As an aside, because it does not alter the fundamental point, gay marriage is illegal in Northern Ireland.  This merely exacerbates the absurdity of it.  It is illegal in Northern Ireland to refuse to bake a cake, even though that cake celebrates an act which is illegal.

Furthermore, the court ruling itself makes it clear that such discrimination is illegal on political grounds.  That raises visions of Catholic bakeries being demanded to bake Orange Order celebrating cakes, or Protestant ones glorifying Bobby Sands.  Jewish bakeries being demanded to bake swastika cakes, or socialist bakeries demanded to bake cakes celebrating Margaret Thatcher, or as some have said, demanding Muslim bakers bake an image of Mohammed to celebrate atheism. 

Where does this take us?  Those who have the best intentions, to remove hatred and bigotry, have taken away freedom to trade, freedom of speech, freedom of religion and underneath all that, the right to decide what you do with your own time and body.  You cannot refuse to bake a cake that depicts a view that you disagree with, because it hurts the feelings of the person who wants the cake, even if being forced to bake the cake hurts your feelings.  It isn't even the purported "equality".

That isn't "gay rights", it's the demands of a petulant child who demands what he wants from someone who objects to the demand and refuses to give in.

Notwithstanding, of course, that the use of imagery of Bert and Ernie may well be a breach of intellectual property rights,  but given Gareth Lee and his bullying braying mob don't care much about genuine rights I doubt they care about that.

The lesson of course is clear.  Don't let nanny state find out that you've committed a thought crime by refusing to bake a cake on grounds nanny deems illegal.  Give any other credible reason.

For me, it's because he's obnoxious.


Daddy said...

In most instances, "rights" are only seen as applying to one side that must be maintained in all instances, ignoring that this violates the rights of others on the opposite side.

The right of the customer to buy anything from any shop is superior to the right of the owner (nasty capitalist...) to trade with whom they deem fit. The right of the non-smoker to frequent a smokefree bar is superior to the right of the owner and smoker to frequent a bar that allows smoking. The right of Muslims to eat halal meat is superior to the right of non-Muslims to know that their meat is non-halal.

The list goes on. Sadly, if you were to ask, 90% of people would agree that the baker should be forced to bake the cake. I hope I'm wrong. But sadly I think the war is lost...

Brendan McNeill said...

A thoughtful post, and one that even though I am a Christian I disagree with. First up, let's put the legality of gay marriage in Ireland to one side for a moment. I don't believe that anyone or any business should be asked to do anything that is illegal or in support of any illegal activity.

Second, I don't personally support gay marriage.

But let's assume that gay marriage is legal, as it is here in New Zealand and in the places around the world. I think the fundamental flaw in your argument is that you fail to differentiate between what can be reasonably expected from an individual, and what can be expected from a business.

I agree that no one can force either of us to bake a cake for any reason, period.

However, if you are in the business of baking cakes, and a customer asks you to bake one, even if you find the message offensive, provided it's not illegal, obscene, or in some way a breach of the law then bake it you should.

Business, like justice needs to be blind.

You say "Asher's Bakery opposes gay marriage." but in reality Asher's Bakery is a business, just a legal trading entity, it has no view on anything one way or the other.

It's like saying 'that's a Christian school' Schools cannot be Christian or atheist, they are a legal entity, an institution.

It may be a bakery owned by Christians, or a school that teaches Christian doctrine - there is a difference.

Now as a Christian I'd happily bake a cake for a gay wedding if I were a baker. We are called to love and to serve, not to judge those who are outside the faith. There will be a judgement eventually, but not by us (thankfully).

But I respect the views of any individual who may not wish to do so. If they were an employee in my business, I'd give them another task to perform. However, if you own a business, you cannot use it as a vehicle for discrimination or religious prejudice.

I take your point that the market may well punish a business that hung a sign saying 'no Jews' in the window, however do you want to live in a town or a city, where these signs pop up like mushrooms all over the place? Do you want to drive another 5K to a gas station that will serve you?

This is not a question of personal liberty but rather of business practice. If you cannot in good conscience serve everyone who fronts up at your counter, you should go do something else for a living.

I mean... would this person work in a supermarket that served gays, or a chemist that sold condoms to gays? Would he frequent a chemist that sold condoms to gays? How could he possibly know, and what difference would it make?

To bake a cake in a business is not an endorsement of the customer's lifestyle preferences, or their sexuality. We are all sinners, every one. This includes all of his customers. He needs to improve his theology and move on.

Brendan McNeill said...

Here is an interesting twist on this theme.

A Christian Jeweller makes engagement rings for a gay couple, they are very happy with the work, however when they discover his faith and support for traditional marriage, they want their money back. - and the mob makes sure they get it.


Anonymous said...

I was all set to defend freedom of conscience, until I read the judgment, on Bailii. What I eventually blogged was very different from what I expected to be blogging!

No platform for gay cakes!


Libertyscott said...

Daddy: The war is not lost, for there is a new generation of young people many of whom have proven they do actually believe in genuine freedom.

Brendan McNeill: I take your point, but a business IS individuals, it is simply how a group of individuals have decided to organise their affairs, collectively. Demanding the "business" supply a product is demanding the shareholders supply it, and the staff (which as an owner-run business is the same people in effect). If Asher's Bakery is a partnership then legally it IS simply a group of individuals, individually liable proportionately, but even as a company, it is still comprised of individual shareholders.

No I don't want to live somewhere where bigotry is explicit, but I think few actually do either.

There is an added element, which is not simply serving a gay customer, but producing a product that expresses an opinion that you find personally offensive. This comes into the limits of free speech. I cannot demand a publication publish my advertisement if it opposes its content, the same should apply to cakes.

On the jeweller one it should simply be a contractual matter and limited to that. Sadly it all indicates how easily people are outraged and intolerant of those with different positions.

Johnallmanuk: Yes good post