Which discrimination should trump which discrimination?

recedite · 06-06-2018 10:19AM

Peregrinus wrote: »

Is that correct? On the one had the article says that he closed the business; on the other, that the business was taken over by new owners, and still continues. Either way, there is no mention of redundancies.

Still, assume for the moment that it is true that the business closed, and redundancies resulted. Those who argue for matters like this to be left to the market presumably think that's exactly what should happen.

If you think this is a bad outcome (because redundancies) then that consideration might lead you to favour a regulatory solution, where the authorities make rules that prevent you from refusing orders that you find morally objectionable, and as a result your business thrives and jobs are saved.

AFAIK the new owners have different staff, but I am not 100% certain of that. Either way, there is no net change in employment.

The new owners of the business are falling over themselves to "virtue signal" as loudly as possible their pro gay rights/abortion rights credentials.

I'm not commenting on whether this is a good thing or a bad thing. I said it was effective; it worked. "Market forces" in action.

A guy who ran a successful business, but whose thinking did not match the prevailing groupthink of today was forced to sell at a knockdown price to somebody whose political opinions did match the groupthink. Or perhaps to somebody who does not let their personal opinions or principles get in the way of business. Who knows which it was? Or does it even matter?

mickydcork · 06-06-2018 10:25AM

mickydcork wrote: »

Hmm. This is a tough one for me.
This is borderline discrimination.

I mean I think the baker is a dick but, should he be forced to design a cake he doesn't want to do?

I think this is a situation where the market should do the heavy lifting. Let's all just boycott cake shops like this and just go to the one down the road that will do cakes for same-sex marriages.

Peregrinus wrote: »

He's essentially running a free speech defence. He argues that his designing and producing a custom cake is artistic expression, a form of speech, and as such is constitutionally protected.

Mmm. Would you say the same if a baker were refusing to supply wedding cakes for mixed-race marriages?

False equivalence surely?

I'm assuming it is not a straightforward case of refusing to supply cakes for a same-sex wedding or mixed-race marriage?

I mean if someone just refuses in that way, then they are refusing to do business because someone is gay or someone is black.

If this is the case here then I agree with you, this is direct discrimination and is unacceptable and should be punishable by law.

The more difficult question probably is (more similar to this case) - should someone be forced to display a public message that they do not accept or believe?

Should someone be allowed to be racist or homophobic if they do not directly discriminate against others?

I think they should be allowed but there should be a social penalty to pay rather than a criminal one.

Peregrinus · 06-06-2018 10:31AM

Well, any business whose stance "does not match the prevailing groupthink" - or, to use less loaded language, does not appeal to the market - tends to fail. That's pretty much how the market works, really; people who don't want to deal with you don't deal with you. It can be brutal.

I think we need to face the fact though, that if we oppose regulatory action which limits the freedom of business owners and argue that these things should be left to market forces, we are favouring a system in which business that take stances that are morally unpopular will tend to fail, with resulting financial and employment losses. I don't think there's any way around this.

magicbastarder · 06-06-2018 10:53AM

as is often common in situations like this, it'd also be a question of where you draw the line between regulation and the much vaunted market forces. if you're going to allow shops to 'go against the prevailing groupthink' (such a lovely phrase), and let them sink or swim, on what issues do you allow that?
do you allow cafes to refuse to allow breastfeeding, for example? if you allow this sort of thing, it's not much good for the poor customer who has to face possible public embarrassment that they are being refused a perfectly legal, common and sensible service because the owner does not like them or their beliefs.

maybe we could allow businesses to discriminate in this way only if they clearly state at the entrance to the premises, the limits they place around the provision of their services!

anyway, i understand the daintree example is slightly different because the owner made public that the idea of civil partnership was in some way objectionable or offensive to him, and centred around changing the display in the window - was anyone actually refused service there?

recedite · 06-06-2018 11:06AM

I was simply agreeing that a boycott can be quicker and more effective than long complicated (and expensive) legal actions.

But... its worth remembering that boycotts always work best against a minority. Like a lynch mob, they don't necessarily lead to a just outcome. Mr. Daintree lost his business because he doggedly and uncompromisingly aligned himself with RC doctrine. That is unpopular these days.
But not so long ago, it was the liberals who suffered.

In terms of an actual legal judgement, which has the backing of the state, only those who have committed an act of actual "illegal discrimination" should be punished. So these cases we have been looking at are all "borderline", which I suppose it what makes them interesting.

Hotblack Desiato · 06-06-2018 12:53PM

Peregrinus wrote: »

He was not happy to accept commissions to design unique cakes for same-sex marriages.

I wonder if people would be so quick to defend him if it was inter-racial couples he had a problem with? I'm sure he could dredge up something from the bible to support that form of bigotry, too.

Edit: I see you alluded to this point yourself, I don't wish to imply that you are defending his stance and I don't think you are, fwiw.

Hotblack Desiato · 06-06-2018 12:55PM

mickydcork wrote: »

I think this is a situation where the market should do the heavy lifting.

The market, yeah that worked out great in the bus ticket market and college market and the lunch counter market in the Deep South.

mickydcork · 06-06-2018 01:38PM

Hotblack Desiato wrote: »

The market, yeah that worked out great in the bus ticket market and college market and the lunch counter market in the Deep South.

False equivalence.

Hotblack Desiato · 06-06-2018 01:44PM

mickydcork wrote: »

False equivalence.

How so? You said people can just go to another provider. What if there are no other providers, or all or nearly all of them are also bigots?

Was this the 'market solution' to racism in the 40s?

mickydcork · 06-06-2018 01:47PM

Hotblack Desiato wrote: »

How so? You said people can just go to another provider. What if there are no other providers, or all or nearly all of them are also bigots?

Was this the 'market solution' to racism in the 40s?

How about you just read my full posts.

I already said direct discrimination should not be allowed and should be subject to intervention by law.

I'm not sure this situation is equivalent to that experienced by blacks in the Jim Crow era deep south.

Hotblack Desiato · 06-06-2018 01:55PM

Well you did say this
"I think this is a situation where the market should do the heavy lifting. Let's all just boycott cake shops like this and just go to the one down the road that will do cakes for same-sex marriages."

Which overlooks a few issues:
- there might not be another one down the road
- the 'gay friendly' cake shop may be inferior quality, or more expensive, but its customers have little other option
- most of the customers of the 'non gay friendly' shop may be unaware of the owner's bigotry, or just don't care
- there may be enough bigots in the area to maintain a substantial number, or even a large majority, of bigot-friendly outlets.

Market isn't going to fix any of those.

mickydcork · 06-06-2018 02:03PM

Hotblack Desiato wrote: »

Well you did say this
"I think this is a situation where the market should do the heavy lifting. Let's all just boycott cake shops like this and just go to the one down the road that will do cakes for same-sex marriages."

Which overlooks a few issues:
- there might not be another one down the road
- the 'gay friendly' cake shop may be inferior quality, or more expensive, but its customers have little other option
- most of the customers of the 'non gay friendly' shop may be unaware of the owner's bigotry, or just don't care
- there may be enough bigots in the area to maintain a substantial number, or even a large majority, of bigot-friendly outlets.

Market isn't going to fix any of those.

These are better points.

My question to you is though - to solve issues like these should a person be forced by law to write something on a cake (or draw a picture etc.) that they do not believe or disagree with or find offensive?

magicbastarder · 06-06-2018 02:08PM

mickydcork wrote: »

These are better points.

My question to you is though - to solve issues like these should a person be forced by law to write something on a cake that they do not believe or disagree with?

no-one is forcing anyone to write things they don't want to on a cake.
the baker chose that profession, it's not a prison sentence. if (s)he has issues with dealing with what is considered a reasonable request from a customer, perhaps the baker should reconsider their profession.

mickydcork · 06-06-2018 02:12PM

Hotblack Desiato wrote: »

Well you did say this
"I think this is a situation where the market should do the heavy lifting. Let's all just boycott cake shops like this and just go to the one down the road that will do cakes for same-sex marriages."

Which overlooks a few issues:
- there might not be another one down the road
- the 'gay friendly' cake shop may be inferior quality, or more expensive, but its customers have little other option
- most of the customers of the 'non gay friendly' shop may be unaware of the owner's bigotry, or just don't care
- there may be enough bigots in the area to maintain a substantial number, or even a large majority, of bigot-friendly outlets.

Market isn't going to fix any of those.

Also I think the market could solve these issues

-if there's a market then another one could open down the road
-if the 'gay friendly' cake shop is of inferior quality, or more expensive, a better/cheaper cake shop could open
-members of society who care should make others aware. In general in modern enlightened society fairness and equality are desirable.
-this is a problem, I agree, this may be where you need the law to step in (similar scenario to the 1950's deep south).

mickydcork · 06-06-2018 02:13PM

magicbastarder wrote: »

no-one is forcing anyone to write things they don't want to on a cake.
the baker chose that profession, it's not a prison sentence. if (s)he has issues with dealing with what is considered a reasonable request from a customer, perhaps the baker should reconsider their profession.

I agree totally and we can help them along in their reconsideration of their profession by boycotting their cake shop and going to the gay friendly one down the road.

Hotblack Desiato · 07-06-2018 01:34AM

mickydcork wrote: »

These are better points.

My question to you is though - to solve issues like these should a person be forced by law to write something on a cake (or draw a picture etc.) that they do not believe or disagree with or find offensive?

In the US case being discussed, it was a refusal to provide a wedding cake to a gay couple AT ALL. Can't defend that no more than the guy could turn away a black or interracial couple simply on the grounds of the colour of their skin.

As for slogans, IMHO:

- One would have reasonable grounds to refuse something that society generally would consider offensive (good luck defining this btw) similarly with anything promoting hatred or discrimination

- Political / sporting etc messages, if refused, should be refused equally for all. i.e. No cake shops which would accept one of 'Rangers' or 'Celtic' or 'DUP' or 'SF' but refuse one of the others.

- If the cake shop owner is such a delicate flower that putting 'Support gay marriage' on a cake gives them a fit of the vapours, the 21st century is probably not for them. I wouldn't define that as a political message. A business is there to offer services to the public on a fair and reasonable basis, not as a means to project the owner's religious bigotry.

Peregrinus · 07-06-2018 02:10AM

Hotblack Desiato wrote: »

In the US case being discussed, it was a refusal to provide a wedding cake to a gay couple AT ALL. Can't defend that no more than the guy could turn away a black or interracial couple simply on the grounds of the colour of their skin.

He was happy to sell them any of the standard cakes in the shop. None of them were dedicated wedding cakes, but of course they were free to eat them at a wedding, and he wouldn't have refused to sell them one knowing that this was their intention.

What he refused to do was to design a unique custom cake for their wedding, though this was a service he generally offered, and he did do this for opposite-sex weddings.

Hotblack Desiato wrote: »

As for slogans, IMHO:

- One would have reasonable grounds to refuse something that society generally would consider offensive (good luck defining this btw) similarly with anything promoting hatred or discrimination

- Political / sporting etc messages, if refused, should be refused equally for all. i.e. No cake shops which would accept one of 'Rangers' or 'Celtic' or 'DUP' or 'SF' but refuse one of the others.

- If the cake shop owner is such a delicate flower that putting 'Support gay marriage' on a cake gives them a fit of the vapours, the 21st century is probably not for them. I wouldn't define that as a political message. A business is there to offer services to the public on a fair and reasonable basis, not as a means to project the owner's religious bigotry.

Possibly. But that doesn't dispose of the free speech argument. There's no rule that speech is only free if its a political message, or if its in line with the predominant contemporary thinking.

You raise an interesting point about speech in the course of business. By opening a public business, do I effectively agree to forgo some of my free speech rights in the context of the business?

In the US they take a very bullish view about free speech and I suspect the answer would be "no".

In France, by contrast, they have a general rule that if you have a licence to conduct a business (and virtually any business requires a licence in France) then you must offer your services to the public at large. There are limited grounds on which you can refuse an order (abnormally small or abnormally large sales, intent to harass, identical goods prepackaged together and parts of a set); otherwise you have to accept all orders. The result is that you can't refuse to provide a cake for a same-sex wedding, but you equally can't refuse to provide a cake for the National Front, or the Friends of Isis, or the Iona Institute, or whoever your particular bête noire may be.

magicbastarder · 07-06-2018 09:15AM

Peregrinus wrote: »

What he refused to do was to design a unique custom cake for their wedding, though this was a service he generally offered, and he did do this for opposite-sex weddings.

but unlike the irish case, the cake itself did not in itself contain a statement about same sex marriage, i understand? i'm failing to understand how issues of free speech comes into it if not.

mickydcork · 07-06-2018 09:23AM

Peregrinus wrote: »

What he refused to do was to design a unique custom cake for their wedding, though this was a service he generally offered, and he did do this for opposite-sex weddings.

magicbastarder wrote: »

but unlike the irish case, the cake itself did not in itself contain a statement about same sex marriage, i understand? i'm failing to understand how issues of free speech comes into it if not.

If this is the case, then Hotblack is right and there is no defending this.

This seems like straight discrimination.

He's refusing to provide a service that he readily provides to non-gay people.

Very strange decision by the supreme court if this is the case.

Peregrinus · 07-06-2018 09:28AM

magicbastarder wrote: »

but unlike the irish case, the cake itself did not in itself contain a statement about same sex marriage, i understand? i'm failing to understand how issues of free speech comes into it if not.

In the Colorado case, the cake was to be a unique, custom cake for a specific wedding which was (obviously) a same-sex wedding.

Designing and producing a unique wedding cake was a high-end service provided by this baker. He would talk to the couple about themselves, their marriage, their wedding, etc and then produce and execute a one-off design for their wedding cake. He saw this as a form of artistic expression, similar to painting a portrait of them, or writing a song about them. And US Supreme Court rulings already establish that artistic expression is protected by the constitutional free speech provisions, even if it doesn't strictly speaking involve any actual speech. He was arguing that this case was covered by those precedents.

He also provided the usual baker service of baking and selling standard cakes which anyone could order and buy. He was happy to sell this couple such a cake, but that wasn't what they wanted.

Hotblack Desiato · 07-06-2018 01:45PM

Peregrinus wrote: »

He was happy to sell them any of the standard cakes in the shop. None of them were dedicated wedding cakes

Which is blatant discrimination on the grounds of sexual orientation. There is no getting away from that.

What he refused to do was to design a unique custom cake for their wedding, though this was a service he generally offered, and he did do this for opposite-sex weddings.

As above.

You raise an interesting point about speech in the course of business. By opening a public business, do I effectively agree to forgo some of my free speech rights in the context of the business?

You might never let a traveller into your house, you can even tell your family how much you hate travellers, but you'd be in trouble if you tried to do either in your shop.

In the US they take a very bullish view about free speech and I suspect the answer would be "no".

The right to free speech is not absolute even in the US. Anyway in the case of slogans, isn't it the person ordering the cake whose 'speech' is affected?

In France, by contrast, they have a general rule that if you have a licence to conduct a business (and virtually any business requires a licence in France) then you must offer your services to the public at large. There are limited grounds on which you can refuse an order (abnormally small or abnormally large sales, intent to harass, identical goods prepackaged together and parts of a set); otherwise you have to accept all orders. The result is that you can't refuse to provide a cake for a same-sex wedding, but you equally can't refuse to provide a cake for the National Front, or the Friends of Isis, or the Iona Institute, or whoever your particular b noire may be.

Doubt expressing support for Isis is legal in any European country.

It should be noted in the Asher's case the NI laws are different from GB laws, they go further and that is probably necessary in such a divided society (hmm maybe Brexit cakes will be the next thing)

Nick Park · 07-06-2018 01:46PM

Hotblack Desiato wrote: »

As for slogans, IMHO:

- One would have reasonable grounds to refuse something that society generally would consider offensive (good luck defining this btw) similarly with anything promoting hatred or discrimination

The problem, of course, is that society has, in the past, generally considered very laudable things as being offensive.

It seems reasonable that someone should not be forced to produce an item that is contrary to their convictions.

For example, should a 'pro-choice' printer be forced to accept an order for producing leaflets that campaign against abortion?

Should a Muslim baker be forced to bake a cake carrying the logo of the English Defence League?

Should a gay photographer be forced to shoot a portfolio of photos for an event promoting conversion therapy?

One solution would be if society was to agree that being a dick is offensive. Therefore anyone who places an order with a printer or bakery to deliberately create a confrontation would be told to catch themselves on.

Peregrinus · 08-06-2018 01:47AM

Nick Park wrote: »

. . . One solution would be if society was to agree that being a dick is offensive. Therefore anyone who places an order with a printer or bakery to deliberately create a confrontation would be told to catch themselves on.

SFAIK that is the rule in France. One of the few reasons that a French merchant can refuse an order is if the order has been placed with a view to harrassing the merchant. So, if I select Asher's bakery to order my Support Equal Marriage cake because I know they won't fill the order and I want to make an issue of this, or because I know they will be embarrassed to fill the order and I want to embarrass them, Asher's are justified in declining the order.

Of course, the problem is proving this. Asher's may suspect that I selected them in order to Make A Point, but if I say "no, I just heard that they make exceedingly good cakes!" the onus is on them to produce evidence of my true intention.

Overheal · 08-06-2018 05:25AM

recedite wrote: »

Fact Check;
Employment discrimination against blacks would have been rife before 1972, so we can confidently say Trump times are the best EVER for black American employment opportunities.

If you’re silly enough to drag this up and pretend this exonerates him you’re smart enough to know he has very little to do with it. The most we can say is he didn’t do anything to screw up a steady decline in that rate that has progressed for many years. Doubt it has anything to actually do with this thread so we will leave it there.

Overheal · 08-06-2018 05:59AM

Peregrinus wrote: »

In the Colorado case, the cake was to be a unique, custom cake for a specific wedding which was (obviously) a same-sex wedding.

Designing and producing a unique wedding cake was a high-end service provided by this baker. He would talk to the couple about themselves, their marriage, their wedding, etc and then produce and execute a one-off design for their wedding cake. He saw this as a form of artistic expression, similar to painting a portrait of them, or writing a song about them. And US Supreme Court rulings already establish that artistic expression is protected by the constitutional free speech provisions, even if it doesn't strictly speaking involve any actual speech. He was arguing that this case was covered by those precedents.

He also provided the usual baker service of baking and selling standard cakes which anyone could order and buy. He was happy to sell this couple such a cake, but that wasn't what they wanted.

TBH, if this is the case and I admit not pouring into the case details it is hard not to side with the baker. Whereas the layperson heats about the case and assumes this was just about an objection to writing out “Jim and Joe’s Wedding” on a standard design of cake. If it was indeed about making a personalized cake (eg. Game nerd couple might get the elaborate Super Mario cake, etc etc) as planned out by the designer, then he can’t really be compelled to do so for something he isn’t agreeable to. That work is more contractual than transactional.

But what the court has to look at is whether it’s reasonable of him when operating a licensed business to say no to a gay couple, or as some mention what if it was an interracial couple, or an interfaith couple. That’s legally muddy if these are artisanal services; you might find a carpentry firm that caters exclusively to Christian churches because of their available time, resources and business model; are businesses like that obligated to first come first served or are they allowed to line up business as they see fit? Again I think the baker should have referred them to someone who would, should have been the first thin he did if he didn’t actually. but as mentioned should he have to cater his business model to every ocassion, bris themed cakes (imagine it), Flying Spaghetti Monster cakes? Pastafarianism might be a religion but how far do we go before the baker should be allowed to say no, this is a mockery of his business, or he wishes to pursue other creative opportunities?

If he refused to sell a standard cake and write Jim and Joe on it though you’ve got something a bit different, imo.

Peregrinus · 08-06-2018 06:55AM

The problem here, I think, is that there's a fuzzy line between baking a standard cake, not protected free speech, and baking a unique, custom cake, artistic expression and therefore protected free speech. Just how much customisation does a cake have to have before it counts as artistic expression? And, whatever answer we arrive at for to that question, can we "generalise" it so that it applies to other cases where a similar question might arise? If wedding floral arrangements are sufficiently unique, do they become "artistic expression" such that I can decline to provide them to weddings that I would prefer not to support? (I'm sure most high-end florists will insist that all their creations are artistic expressions!)

Of course, the fact that a line is sometimes hard to draw doesn't mean that there is no line, or that Tesco selling Mr Kipling cakes is in the the same position as a master pastry chef producing a bespoke creation for a particular wedding. But we do have to be practical here; the law requires some clarity, and we need a rule under which most people can know, without going to the Supreme Court, whether they are or are not required by law to provide services to a same-sex wedding.

Overheal · 08-06-2018 07:59AM

I guess in this case I’d draw a line between standard and artisan as the customer specifying the detail of the cake based on available options (icing colors, features, etc) vs asking the baker to create something unique to them based on their artistic expression and talent. Same as, for an engineered part, if you’re ordering a catalog part with catalog options which gets a standard part number (eg. Something from Misumi USA for instance, with a long string part number based on dozens of options) vs. something that requires special engineering attention, communication between client and specialists, new engineering drawings and custom fabrication. Most grocery stores for instance have a cake catalog just for that, pretty big standard gamut of cakes and options and Snoopy stencils to pick from. Somewhat similarly we don’t call burger flippers at fast food chains Chefs, what they’re doing isn’t an art form it’s an execution of a standardized operating procedure.

Nick Park · 08-06-2018 02:17PM

Overheal wrote: »

I guess in this case I’d draw a line between standard and artisan as the customer specifying the detail of the cake based on available options (icing colors, features, etc) vs asking the baker to create something unique to them based on their artistic expression and talent. Same as, for an engineered part, if you’re ordering a catalog part with catalog options which gets a standard part number (eg. Something from Misumi USA for instance, with a long string part number based on dozens of options) vs. something that requires special engineering attention, communication between client and specialists, new engineering drawings and custom fabrication. Most grocery stores for instance have a cake catalog just for that, pretty big standard gamut of cakes and options and Snoopy stencils to pick from. Somewhat similarly we don’t call burger flippers at fast food chains Chefs, what they’re doing isn’t an art form it’s an execution of a standardized operating procedure.

Interesting points. What about a pharmaceutical company asked to provide a particular concoction of chemicals for the purposes of executing prisoners in the United States? Presumably they can't stop the Texas Prison System from purchasing a bog standard medical product - but surely they would be within their rights to say, "No, we won't accept an order for a tailor-made lethal substance for executions"?

recedite · 08-06-2018 03:44PM

Overheal wrote: »

If it was indeed about making a personalized cake (eg. Game nerd couple might get the elaborate Super Mario cake, etc etc) as planned out by the designer, then he can’t really be compelled to do so for something he isn’t agreeable to. That work is more contractual than transactional.

That's a helpful way of looking at it, in general terms. But I'm not sure you can actually draw a line in the sand between "transactional" and "contractual" in real life scenarios. Even the simple transaction of buying a cup of coffee is a legal contract involving an offer and an acceptance of that offer. We had the Starbucks debacle and more recently the Portland bakery incident during which some gay vegans capitulated to bullying from black "equity specialists". Or at least, they sacrificed some junior white female staff members to them.

Overheal wrote: »

Again I think the baker should have referred them to someone who would, should have been the first thin he did if he didn’t actually.

Referring the client on while profusely apologising might work in some cases, but it does not actually address the substantive issue. It just covers it up.

Peregrinus · 08-06-2018 04:24PM

Nick Park wrote: »

Interesting points. What about a pharmaceutical company asked to provide a particular concoction of chemicals for the purposes of executing prisoners in the United States? Presumably they can't stop the Texas Prison System from purchasing a bog standard medical product - but surely they would be within their rights to say, "No, we won't accept an order for a tailor-made lethal substance for executions"?

Actually, the pharmaceutical company can certainly make it a condition of the contract for the sale of the drugs that the purchaser will not use them to execute somebody, and will not supply them to somebody who will use them in that way. The fact that most pharmaceutical companies do impose this condition, either because the are required to by the law of their own country or because they are basically decent people, has been a recurring problem for some years now for those US states which execute prisoners by lethal injection.

Which discrimination should trump which discrimination?

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