Asher’s Case is highly complex

We do not profess to be legal experts, but we have drafted Equality Schemes for both public sector and voluntary bodies in Northern Ireland and the Republic over the past fifteen years.

So, what about the Asher’s case? It is complex. We see no evidence of bias in the media, but we do see challenges around dealing with the detail of the case.

Space does not permit us to do this either, but a few points are worth noting.

Firstly, equality law in Northern Ireland is a hotchpotch of regulations and orders, primarily following on from provisions made in Equality Law elsewhere in the UK, and in the Northern Ireland Act which gave force to the 1998 Agreement. Consideration is being given to a Single Equality Bill (the UK Parliament passed such an Act in 2010 applying to England & Wales and Scotland, but equality law is devolved in Northern Ireland).

Secondly, equality law in Northern Ireland does allow religious organisations specifically to discriminate on religious grounds, including on employment and service. This does not, however, apply to religious people or to people operating indirectly on behalf of religious organisations.

Thirdly, consumer law in Northern Ireland does allow a service provider to refuse service; essentially there are two exceptions to this – it may not abuse this to promote reduced prices; and it may not do so in a way which discriminates against someone on the grounds of various things, including (relevantly here) political opinion and sexual orientation.

There are several ways in which the bakery could defend itself. It could say that it has a policy of avoiding political slogans at all on cakes it bakes – which, if not demonstrated to be false (say, by past cakes), would almost certainly clear it. It could argue that it did not wish to bake that particular cake simply because it did not want to, but that it was unaware of the sexual orientation of the customer – which would be trickier, but theoretically possible (and seems the most likely line). It could argue that it believes the provisions applying to religious organisations should apply to it – which would surely be rejected.

It is a surprise to us that the Equality Commission took this particular case given it is not clear cut and there is a real risk of defeat. However, to be fair to it, either way the outcome will be of significant legal interest.


2 thoughts on “Asher’s Case is highly complex

  1. beni22sof says:

    This Ashers case seems absurd to me. The bakers refused to create a cake supporting gay marriage. When someone asks you to create something specifically for him, for money, you can accept or deny the order. The demand may be too complicated, too pretentious, or just not comfortable for the creator. He has the right to refuse. A shop has the right to choose its market. If this case against Ashers goes through, then it will create an outrageous precedent: you can’t say no to gay people whatever they ask you to do…??? The bakery is a private enterprise, not financed by the state. Nobody can oblige them to do something that they don’t want to do.

    Here are a few other stuff you could get sued on:

    1. Does a wedding photographer needs to accept to do photos at a gay wedding, if he/she does not want to?

    2. Does a wedding music band needs to accept to entertain a gay wedding if they do not want to?

    3. Does a halal meat shop need to sell pork because the majority of the population eats pork?

    Are we not free to have an opinion and express it?

    • We are not legal experts.

      That said, the issue comes down to the reason you reject the order. If you reject it because you do not wish to fulfil it, the law is on your side. However, if you reject it because of the political opinion or sexual orientation of the prospective client, you are guilty of discrimination.

      The problem here is that the bakery *did* accept the order, and then refused to complete it. But its own admission, this was not because it was unable to complete it. That is what the case hinges on.

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