Gay Marriage and Cakes: Why Sarah Ferguson is wrong
“Local companies should be protected when the marriage law is changed to avoid something similar to the ‘gay cake’ trial happening in Jersey, a politician has said. Senator Sarah Ferguson said although she does not oppose the same-sex legislation, she wants islanders to be able to refuse wedding business without fear of recrimination. In 2016, the Christian owners of a Northern Ireland bakery lost their appeal against a ruling that their refusal to make a ‘gay cake’ was discriminatory. Appeal court judges said that, under law, the bakers were not allowed to provide a service only to people who agreed with their religious beliefs.”
If Sarah had done her homework, she would have seen that the case in Northern Ireland was to do with the provision of services, which came under the purview of the discrimination law, and was only incidentally to do with gay marriage.
As there is already a discrimination law in Jersey relating to discrimination on the grounds of protected sexual characteristics, the same case, if it arose in Jersey, would also be subject to a Court ruling along the same lines as that in Northern Ireland.
It does not need a Gay Marriage law, and would have nothing to do with such a law. The law simply sets out the legal requirements and obligations of the couple marrying; it has nothing to do with catering at the wedding.
In the case in question, a gay rights activist had wanted the baker to make a cake that included a slogan that said "support gay marriage" along with a picture of Bert and Ernie from Sesame Street, and the logo of the Queerspace organisation.
The cake was being commissioned for a civic event in Bangor, County Down, to mark International Day Against Homophobia and Transphobia. It was not being commission for a wedding.
The Court’s judgement in the case in Northern Ireland makes it very clear that it was a discriminatory act involving “direct discrimination” regarding the provision of services.
It ruled:
“The benefit from the message or slogan on the cake could only accrue to gay or bisexual people. The appellants would not have objected to a cake carrying the message “Support Heterosexual Marriage” or indeed “Support Marriage”. We accept that it was the use of the word “Gay” in the context of the message which prevented the order from being fulfilled. The reason that the order was cancelled was that the appellants would not provide a cake with a message supporting a right to marry for those of a particular sexual orientation. 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.”
And this applies just as much in Jersey today – without having a Gay Marriage law:
“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 that person seeks to distinguish on a basis that is prohibited between those who will receive their service and those who will not. “
Sarah Ferguson said: “I think it's unfair that one person's opinion should be forced on another person, that the same-sex couple should force their opinion on the cake maker [and] cause them to lose their livelihood all through a difference of opinion.”
But there is a solution. As the summary of the judgement pointed out:
“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 message in relation to sexual orientation.”
Let us hope the good Senator does a little more homework on the background to the case and the reasons for the judgement before making statements that do not stand up.
“Local companies should be protected when the marriage law is changed to avoid something similar to the ‘gay cake’ trial happening in Jersey, a politician has said. Senator Sarah Ferguson said although she does not oppose the same-sex legislation, she wants islanders to be able to refuse wedding business without fear of recrimination. In 2016, the Christian owners of a Northern Ireland bakery lost their appeal against a ruling that their refusal to make a ‘gay cake’ was discriminatory. Appeal court judges said that, under law, the bakers were not allowed to provide a service only to people who agreed with their religious beliefs.”
If Sarah had done her homework, she would have seen that the case in Northern Ireland was to do with the provision of services, which came under the purview of the discrimination law, and was only incidentally to do with gay marriage.
As there is already a discrimination law in Jersey relating to discrimination on the grounds of protected sexual characteristics, the same case, if it arose in Jersey, would also be subject to a Court ruling along the same lines as that in Northern Ireland.
It does not need a Gay Marriage law, and would have nothing to do with such a law. The law simply sets out the legal requirements and obligations of the couple marrying; it has nothing to do with catering at the wedding.
In the case in question, a gay rights activist had wanted the baker to make a cake that included a slogan that said "support gay marriage" along with a picture of Bert and Ernie from Sesame Street, and the logo of the Queerspace organisation.
The cake was being commissioned for a civic event in Bangor, County Down, to mark International Day Against Homophobia and Transphobia. It was not being commission for a wedding.
The Court’s judgement in the case in Northern Ireland makes it very clear that it was a discriminatory act involving “direct discrimination” regarding the provision of services.
It ruled:
“The benefit from the message or slogan on the cake could only accrue to gay or bisexual people. The appellants would not have objected to a cake carrying the message “Support Heterosexual Marriage” or indeed “Support Marriage”. We accept that it was the use of the word “Gay” in the context of the message which prevented the order from being fulfilled. The reason that the order was cancelled was that the appellants would not provide a cake with a message supporting a right to marry for those of a particular sexual orientation. 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.”
And this applies just as much in Jersey today – without having a Gay Marriage law:
“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 that person seeks to distinguish on a basis that is prohibited between those who will receive their service and those who will not. “
Sarah Ferguson said: “I think it's unfair that one person's opinion should be forced on another person, that the same-sex couple should force their opinion on the cake maker [and] cause them to lose their livelihood all through a difference of opinion.”
But there is a solution. As the summary of the judgement pointed out:
“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 message in relation to sexual orientation.”
Let us hope the good Senator does a little more homework on the background to the case and the reasons for the judgement before making statements that do not stand up.
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