“The important message from the Masterpiece Bakery case is that there is a clear distinction between refusing to produce a cake conveying a particular message, for any customer who wants such a cake, and refusing to produce a cake for the particular customer who wants it because of that customer’s characteristics.”
Owners of Cake shops, one in Colorado (US) and the other in Ireland (UK), have defended their right not to supply a cake for gays and the cases reached the top court of their respective countries. While the stand adopted by Ireland family got vindicated by the United Kingdom Supreme Court, the Colorado man had not got a clear answer from the Supreme Court of United States.
The ‘orders' they got from their customers were different just as the orders passed by the two Supreme Courts. The Ireland baker was approached by a gay man who wanted a cake to be iced with his design, a coloured picture of cartoon-like characters “Bert and Ernie”, the QueerSpace logo, and the headline “Support Gay Marriage”. He refused to take the order as the gay marriage is inconsistent with his religious beliefs. But the Colorado man had refused to supply the cake for a same-sex couple for their wedding celebration, though the reasons for refusal was the same. This article attempts to discuss the judgments in these cake cases.
Mr. and Mrs. McArthur, a Christian family, runs a bakery business since 1992. One gay man named Lee is a volunteer of QueerSpace, an organisation for the LGBT community in Belfast, placed an order for a cake to be iced with his design, a coloured picture of cartoon-like characters “Bert and Ernie”, the QueerSpace logo, and the headline “Support Gay Marriage”. The district judge and the Court of Appeals ruled against the bakers.
On Wednesday, the United Kingdom Supreme Court allowed the appeals in favour of the cake owners holding that the objection from their part was to the message and not to any particular person or persons and not on grounds of “sexual orientation” or “political beliefs”. Lady Hale, the President of the Supreme Court, who authored the judgment, said: “There was no less favourable treatment on this ground because anyone else would have been treated in the same way. The objection was not to Mr Lee because he, or anyone with whom he associated, held a political opinion supporting gay marriage. The objection was to being required to promote the message on the cake. The less favourable treatment was afforded to the message not to the man. It was not as if he were being refused a job, or accommodation, or baked goods in general, because of his political opinion, as for example, was alleged to have happened in Ryder v Northern Ireland Policing Board. The evidence was that they were quite prepared to serve him in other ways. The situation is not comparable to people being refused jobs, accommodation or business simply because of their religious faith. It is more akin to a Christian printing business being required to print leaflets promoting an atheist message.”
But the judge said in holding in favour of the bakery owner does not seek to minimise or disparage the very real problem of discrimination against gay people. She said: “Experience has shown that the providers of employment, education, accommodation, goods, facilities and services do not always treat people with equal dignity and respect, especially if they have certain personal characteristics which are now protected by the law. It is deeply humiliating, and an affront to human dignity, to deny someone a service because of that person’s race, gender, disability, sexual orientation or any of the other protected personal characteristics. But that is not what happened in this case and it does the project of equal treatment no favours to seek to extend it beyond its proper scope.”
The judgment also discusses the SCOTUS judgment delivered in June 2018. It said: “The important message from the Masterpiece Bakery case is that there is a clear distinction between refusing to produce a cake conveying a particular message, for any customer who wants such a cake, and refusing to produce a cake for the particular customer who wants it because of that customer’s characteristics. One can debate which side of the line particular factual scenarios fall. But in our case there can be no doubt. The bakery would have refused to supply this particular cake to anyone, whatever their personal characteristics. So there was no discrimination on grounds of sexual orientation. If and to the extent that there was discrimination on grounds of political opinion, no justification has been shown for the compelled speech which would be entailed for imposing civil liability for refusing to fulfil the order.”
Masterpiece Cakeshop, Ltd. was owned and operated by Jack Phillips, an expert baker and devout Christian. In 2012, he told a same-sex couple that he would not create a cake for their wedding celebration because of his religious opposition to same-sex marriages. The same-sex couple approached Colorado Civil Rights Commission and complained that he violated the Colorado Anti-Discrimination Act (CADA), which prohibits, discrimination based on sexual orientation in a “place of business engaged in any sales to the public and any place offering services . . . to the public.” The commission then referred the case for a formal hearing before a state Administrative Law Judge (ALJ), who ruled in the couple’s favour and rejected Phillips’ First Amendment claims: that requiring him to create a cake for a same-sex wedding would violate his right to free speech by compelling him to exercise his artistic talents to express a message with which he disagreed and would violate his right to the free exercise of religion. Both the Commission and the Colorado Court of Appeals affirmed this decision.
On 4th June 2018, the SCOTUS overruled these decisions on the ground that Phillips’ religious objection was not considered with the neutrality required by the Free Exercise Clause. It took note that the commission had concluded in three cases that a baker acted lawfully in declining to create cakes with decorations that demeaned gay persons or gay marriages. “As the record shows, some of the commissioners at the Commission’s formal, public hearings endorsed the view that religious beliefs cannot legitimately be carried into the public sphere or commercial domain, disparaged Phillips’ faith as despicable and characterized it as merely rhetorical, and compared his invocation of his sincerely held religious beliefs to defenses of slavery and the Holocaust. No commissioners objected to the comments. Nor were they mentioned in the later state-court ruling or disavowed in the briefs filed here. The comments thus cast doubt on the fairness and impartiality of the Commission’s adjudication of Phillips’ case,” Justice Kennedy said.
Read the Judgments Here