Christian businesses / gay marriage celebration question

morebabies

As with the Ashers Bakery case, where the bakery owners went to court over their refusal to bake a cake with a message supporting gay marriage, I have a question.

I'm going to pick a different example, that of the pro life vs. pro choice situation. If a Christian business was asked to print pro choice fliers and felt unable to accept the order because it fundamentally goes against their beliefs, would it be better if the Christian business accepted the order but donated the money from the sale to a pro life charity, and let the customer know that's what they were doing, and basically live with the loss of that sale rather than face an expensive court case?

What are your opinions on this and does anyone know where Ireland stands legally on such matters?

Manach

It is a fairly common truism, that the law is how a sitting judge interprets said law (the works of jurists like Richard Posner are a good academic source). Thus with social issues, especially in light of very recent events in the US and the de-platforming of material deemed to breach a company's terms of service the question is very much in a state of flux. In one strand, if focused on the message itself ("X is Wrong ") then the prevailing consensus seems to be that is acceptable not to choose to enable it - or at least not face a legal consequence. Only if grounds of the refusal are against the person themselves ( because they are one of A, B, C catogories etc) then does it become actionable.
For instance, recently a target store refused to print out Pro-Life flyers due to the manager's insistence. The store later issued an apology and printed them out, but this was due to a wish to AFAIR - be open to all - rather than a specific legal requirement.

uck51js9zml2yt

Just put a sign up in the shop. "all orders are subject to acceptance and can be refused without explanation" or some such wording and refuse it with no explanation.

Job done!

morebabies

Layton Great Armrest wrote: »

Just put a sign up in the shop. "all orders are subject to acceptance and can be refused without explanation" or some such wording and refuse it with no explanation.

Job done!

Is that allowed?

lazybones32

I guess in a situation like that, it is at the discretion of the owner whether to print it or not but no discrimination has occurred based on gender, race, religion (only if you're muslim), sexuality, disability or whatever other thing can be used as discrimination.

It's up to the individual whether to allow it or not. One might see no conflict and say that it is ink on paper, another might turn away the business on principle.

Peregrinus

Apart from the snide and unwarranted comment about Muslims, lazybones32 has it. The Asher case revolved around whether the refusal of the order was discrimination on the grounds of sexual orientation. But refusal to bake a pro-choice (or, for that matter, a pro-life) cake, whatever your feelings about it, is hard to characterise as discrimination on the grounds of sexual orientation or any of the other protected grounds, and I don't see a discrimination case getting off the ground.

Peregrinus

Layton Great Armrest wrote: »

Just put a sign up in the shop. "all orders are subject to acceptance and can be refused without explanation" or some such wording and refuse it with no explanation.

Job done!

morebabies wrote: »

Is that allowed?

Yes, it is. But if you refuse an order for a reason which is discriminatory on one of the protected grounds, it won't protect you from the legal consequences. The fact that you haven't given an explanation of your reasons may create a practical obstacle, since its up to the person suing you to show that you refused for a prohibited reason. But that would be the case whether or not you displayed the notice.

Signs which are, in effect, an attempt to say "I reserve the right to break the law" do not give you the right to break the law.

lazybones32

Peregrinus wrote: »

Apart from the snide and unwarranted comment about Muslims,...

Who made a comment about Muslims?
Report posts instead of backseat modding if you think the charter has been broken.

Peregrinus

lazybones32 wrote: »

Who made a comment about Muslims?

You did:

lazybones32 wrote: »

I guess in a situation like that, it is at the discretion of the owner whether to print it or not but no discrimination has occurred based on gender, race, religion (only if you're muslim), sexuality, disability or whatever other thing can be used as discrimination . . .

[Emphasis added]

lazybones32 wrote: »

Report posts instead of backseat modding if you think the charter has been broken.

I must admit it didn't occur to me that there might be a charter breach there. I just thought that the comment was snide and unwarranted and that somebody ought to say so.

lazybones32

Peregrinus wrote: »

You did:


[Emphasis added]


I must admit it didn't occur to me that there might be a charter breach there. I just thought that the comment was snide and unwarranted and that somebody ought to say so.

Report the post then. What you consider snide is of no concern to me so no need to share those thoughts with me in future.

Delirium

MOD NOTE

If posters believe a post breaches the charter, please use the report button.

If you believe a poster is back-seat moderating, the report button is also available to you.

Thanks for your attention.

Delirium

MOD NOTE

If people wish to discuss moderation, feel free to use the PM facility.

Please don't derail the thread.

Thanks for your attention.

morebabies

Ok thanks guys for your answers. The legal side of things seems very cloudy, one judge may interpret the refusal of and order as discriminatory, another may see it as justifiable.

So the possible solution I suggested, if the Christian business owner accepts the order, but lets the customer know that all of the money from the sale will go towards a pro life organisation, or say in the case of gay marriage invitations for example, or Pride parade signage , if the Christian owner says I'll fulfill your order but donate all money to the Iona Institute... is this legal in both pro life and gay marriage/parade issues, or could the owner still be brought to court for discrimination even if they were very respectful in their dealings with the client?

lazybones32

It's not illegal to antagonise customers. No law has been broken.

uck51js9zml2yt

I dont see any need to explain your reasoning.
A notice saying the management reserve the right to refuse an order without reason and the refusal of the order without reason sorts it out.
The customer only has a claim if you tell them why you are refusing.

antiskeptic

Layton Great Armrest wrote: »

I dont see any need to explain your reasoning.
A notice saying the management reserve the right to refuse an order without reason and the refusal of the order without reason sorts it out.
The customer only has a claim if you tell them why you are refusing.

It's unlikely that the law would be so easily deflected. If someone brought a case against you - supposing the refusal was based on something which transgressed the law - the the law could be expected to evaluate whether the charge laid was reasonable or not.

It wouldn't be hard for someone to test their suspicion against you by attempting to lay orders with your company, such as to reveal the reasoning behind your refusal.

This isn't criminal law, where the bar is set high wrt level of evidence. If it could be reasonably inferred that the law was being broken, then conviction would likely follow.

Peregrinus

If somebody brings an action alleging a breach of the equal treatment legislation, the onus of proof is on them to show that the equal treatment legislation has been breached. In this case, that would require them to show that the refusal of their order was based on one of the prohibited grounds.

That's a lot easier, obviously, if the owner of the business says "I don't serve women" (or gays, or Jews, or whatever). If the owner simply declines to explain his refusal of the order, he can't be obliged to.

That doesn't mean that the plaintiff can't succeed. For example, if he can show that the owner has a consistent pattern of refusing custom from women, gays, Jews, whoever, or of not employing them, he can invite the Tribunal to infer from this pattern, plus the owner's refusal to explain it, that the reason for the refusal is gender, orientation, religion. As antiskeptic says, this isn't a criminal matter; the plaintiff doesn't have to prove his case beyond all reasonable doubt, only on the balance of probabilities - i.e. he has to persuade the tribunal that, more probably than not, this business is discrimating on the grounds of gender, orientation, religion, whatever.

This isn't trivial to do - the majority of equal treatment cases that go to hearing are unsuccessful because the plaintiff fails to surmount this evidential hurdle. But nor is it impossible to do without a confession.

smacl

Peregrinus wrote: »

This isn't trivial to do - the majority of equal treatment cases that go to hearing are unsuccessful because the plaintiff fails to surmount this evidential hurdle. But nor is it impossible to do without a confession.

In practical terms though, Tatranska's approach would most likely work. You commonly see something similar in many pubs and clubs, i.e. 'Management reserve the right to serve / admit' I'd guess there would only ever be an issue if the company in question made a point of refusing someones business for a reason that might breach equality legislation, as has been the case with travellers in recent times.

Peregrinus

Undoubtedly if you're going to refuse orders/service on one of the prohibited grounds, you're best off keeping firmly schtumm about your reasons. This doesn't guarantee that you will win any ensuing complaint/proceedings under the equal treatment legislation but it does leave you much better-positioned than the alternative of confessing your motives with all the self-harming frankness of a Donald Trump tweet.

You're better off again, obviously not to refuse service/orders on one of the prohibited grounds in the first place. In the scenario raised by the OP, refusing to take the order for the printing of the pro-choice flyer would be fine; that doesn't appear to be based on any of the prohibited grounds.

morebabies

Peregrinus wrote: »

Undoubtedly if you're going to refuse orders/service on one of the prohibited grounds, you're best off keeping firmly schtumm about your reasons. This doesn't guarantee that you will win any ensuing complaint/proceedings under the equal treatment legislation but it does leave you much better-positioned than the alternative of confessing your motives with all the self-harming frankness of a Donald Trump tweet.

You're better off again, obviously not to refuse service/orders on one of the prohibited grounds in the first place. In the scenario raised by the OP, refusing to take the order for the printing of the pro-choice flyer would be fine; that doesn't appear to be based on any of the prohibited grounds.

Thanks for that, even though I'm getting the idea that a Christian business owner would not be immune from prosecution even if they refused the business in the most respectful way possible.
If a Christian business owner could prove that the material they printed was always specifically Christian, would that make a difference? As in, sorry, but we only print Catholic material for example. Even if that was not specifically stated in the business description?

Peregrinus

morebabies wrote: »

Thanks for that, even though I'm getting the idea that a Christian business owner would not be immune from prosecution even if they refused the business in the most respectful way possible.
If a Christian business owner could prove that the material they printed was always specifically Christian, would that make a difference? As in, sorry, but we only print Catholic material for example. Even if that was not specifically stated in the business description?

I don't see that he needs to do that. Among the rights guaranteed in the Constitution are freedom of speech and freedom of association. If a printer is approached and asked to print leaflets for (say) Sinn Fein, and declines on the grounds that he is not a supporter of Sinn Fein and does not wish to assist their campaigning in any way, even for money, he is clearly exercising his rights of free speech ("free speech" means you can't be compelled to say something that you choose not to say) and freedom of association (you can't be compelled to support a political party that you choose not to support).

Rights of free speech and freedom of association are not absolute and you're not, for example, entitled to call for the extermination of the Jews, or refuse to serve black people, and suffer with no legal consequences.

But the scenario raised in the OP is of a printer asked to print a leaflet for use in a campaign seeking a change in Irish abortion laws. If the printer doesn't support a change in Irish abortion laws, there is no law that I know of which can compel him to accept and fulfil the order. The question of whether his reasons for not supporting a change are religious or not is irrelevant. He will certainly not be prosecuted for declining the order; no offence is committed. It's possible that somebody will bring civil proceedings against him (you can never rule this out, because people have a right of access to the courts, and you cannot stop them issuing court proceedings) but I cannot see any basis on which the proceedings would succeed.

In the Asher's bakery case, the complaint was not that the baker refused the order because the baker was a Christian, but that the baker refused the order because the customer was gay. As it happens, I don't think the case was well-reasoned or that it is good law, but never mind that; even if you accept Asher as authoritative, it's not authority for saying that you can be sued for acting out of a Christian motivation; it's authority for saying that you can be sued for treating somebody less favourably on the basis of their sexual orientation. In the pro-choice leaflet scenario, Asher is no help at all to the complainant.

MrPudding

Peregrinus wrote: »

I don't see that he needs to do that. Among the rights guaranteed in the Constitution are freedom of speech and freedom of association. If a printer is approached and asked to print leaflets for (say) Sinn Fein, and declines on the grounds that he is not a supporter of Sinn Fein and does not wish to assist their campaigning in any way, even for money, he is clearly exercising his rights of free speech ("free speech" means you can't be compelled to say something that you choose not to say) and freedom of association (you can't be compelled to support a political party that you choose not to support).

Rights of free speech and freedom of association are not absolute and you're not, for example, entitled to call for the extermination of the Jews, or refuse to serve black people, and suffer with no legal consequences.

But the scenario raised in the OP is of a printer asked to print a leaflet for use in a campaign seeking a change in Irish abortion laws. If the printer doesn't support a change in Irish abortion laws, there is no law that I know of which can compel him to accept and fulfil the order. The question of whether his reasons for not supporting a change are religious or not is irrelevant. He will certainly not be prosecuted for declining the order; no offence is committed. It's possible that somebody will bring civil proceedings against him (you can never rule this out, because people have a right of access to the courts, and you cannot stop them issuing court proceedings) but I cannot see any basis on which the proceedings would succeed.

In the Asher's bakery case, the complaint was not that the baker refused the order because the baker was a Christian, but that the baker refused the order because the customer was gay. As it happens, I don't think the case was well-reasoned or that it is good law, but never mind that; even if you accept Asher as authoritative, it's not authority for saying that you can be sued for acting out of a Christian motivation; it's authority for saying that you can be sued for treating somebody less favourably on the basis of their sexual orientation. In the pro-choice leaflet scenario, Asher is no help at all to the complainant.

I pretty much agree with this, including your view on the Asher case, but (in the UK at least) I would not be so sure about there being no basis for proceedings to succeed, particularly given Asher.

In the circumstances set out, I think there might be an argument (not sure how this would work in Ireland. Irish law tends to follow English law in a lot of respects, but I am not sure about discrimination, this entire post may be irrelevant), that refusing to print pro-choice material was discriminatory, indirectly. The argument would be something like this: Abortions are only needed by women, therefore women are more likely to campaign for abortion laws to be changed, therefore refusing to print such material will disproportionately affect woman, therefore indirect discrimination on the grounds of sex.

Now, I am not saying it is a great argument, but it is an argument. This line of reasoning was actually used in the Asher case, a person campaigning for same sex marriage was more likely to be gay, therefore refusing a message support same sex marriage was more likely to affect a gay person, etc.

MrP

Peregrinus

I take your point, but I don't see an indirect discrimination claim standing up here.

The relevant legislation is the Equal Status Act 2000 s. 3(1)(c). Indirect discrimination occurs where you impose a condition that disproportionately burdens people within a protected class and it's unreasonable to impose the condition. The classic example in an employment context is where you specify that applicants for a particular job must be at least 180cm in height; many more women than men will be ruled out by this requirement, and it will amount to indirect discrimination on the grounds of sex if, and only if, that's an unreasonable requirement to impose, given the nature of the job that you are advertising.

This isn't an employment case, obviously, but similar principles apply. What the printer is saying, I think, is "we won't print material for a campaign which is contrary to our political beliefs". The disadvantage imposed on people affected by this rule is not that they can't have abortions or that they can't get the abortion laws changed - neither of these things are services that printers offer to provide. The disadvantage is that they can't get their leaflets printed. I await evidence that the class of people wishing to have pro-choice leaflets printed is disproportionately female. (I think most of the surveys suggest there is little difference between the sexes when it comes to pro-choice vs. pro-life attitudes.) Even if you could show that, I think there's a strong argument that the printer's stance is reasonable, given the constitutional guarantee of freedom of speech/freedom of association (which of course would not have been a factor in the Asher case in the same way).