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Which discrimination should trump which discrimination?

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    #242
    Peregrinus
    Registered Users Posts: 26,092 ✭✭✭✭Peregrinus


    recedite wrote: »
    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 . . . .
    Yeah. Commercial transactions are generally contractual. These aren't two distinct classes at all.
    recedite wrote: »
    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.
    More to the point, perhaps, someone who has an ethical objection to supporting something by rendering services may equally have an ethical objection to supporting that thing by referring people to someone who will render those services. To go back to the example Nick raised, a pharma company that won't supply drugs for executions is probably not willing to refer enquiries to a pharma company that will.


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    #243
    recedite
    Closed Accounts Posts: 13,993 ✭✭✭✭recedite


    Pharma companies can get around the issue by saying that their product is only "licensed for" certain uses, which excludes all others.


    In the Colorado baker case, I think the thing he is relying on is the freedom of a person to use their own creativity in the ways they want to use it. Its a "freedom of expression" that is being exercised. Something which is not present when somebody is just selling a basic cake, or a coffee.


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    #244
    magicbastarder
    Moderators, Category Moderators, Arts Moderators, Sports Moderators Posts: 48,458 CMod ✭✭✭✭magicbastarder


    Gay cake case: Belfast bakery did not discriminate, UK supreme court rules
    A Belfast bakery did not discriminate against a gay man when it refused to bake a cake with a message supporting gay marriage, the British supreme court has ruled.
    https://www.irishtimes.com/news/world/uk/gay-cake-case-belfast-bakery-did-not-discriminate-uk-supreme-court-rules-1.3658424


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    #245
    Peregrinus
    Registered Users Posts: 26,092 ✭✭✭✭Peregrinus


    Link to the judgment.


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    #246
    TheChizler
    Registered Users Posts: 9,420 ✭✭✭TheChizler


    magicbastarder wrote: »
    Gay cake case: Belfast bakery did not discriminate, UK supreme court rules
    A Belfast bakery did not discriminate against a gay man when it refused to bake a cake with a message supporting gay marriage, the British supreme court has ruled.
    https://www.irishtimes.com/news/world/uk/gay-cake-case-belfast-bakery-did-not-discriminate-uk-supreme-court-rules-1.3658424
    “They would have refused to make such a cake for any customer, irrespective of their sexual orientation. Their objection was to the message on the cake, not to the personal characteristics of Mr Lee or anyone else with whom he associated,” the court’s president Brenda Hale said.

    Sense at last. This is what I've always argued. Though that wasn't their defence argument initially was it?


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    #247
    Peregrinus
    Registered Users Posts: 26,092 ✭✭✭✭Peregrinus


    TheChizler wrote: »
    Sense at last. This is what I've always argued. Though that wasn't their defence argument initially was it?
    Yes, it was.


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    #248
    robindch
    Moderators, Society & Culture Moderators Posts: 24,399 Mod ✭✭✭✭robindch


    Peregrinus wrote: »
    Link to the judgment.
    Primary-source material - thank you :)


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    #249
    TheChizler
    Registered Users Posts: 9,420 ✭✭✭TheChizler


    Peregrinus wrote: »
    Yes, it was.
    I must try and find some of the original articles, at the time I was tearing my hair out with the frustration at one of their statements to a newspaper. Maybe they phrased it more like "we are defending our right to religious conscience" rather than "it was the message we we refused, not the person".


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    #250
    recedite
    Closed Accounts Posts: 13,993 ✭✭✭✭recedite


    Its a sensible outcome. In summary there was no discrimination against the customer (contrary to the earlier view of the NI Equality Commission and the lower courts).
    In reaching the conclusion that there was no discrimination on grounds of sexual orientation in this case, I do not seek to minimise or disparage the very real problem of discrimination against gay people.
    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.
    That being the situation, the law..
    should not be read or given effect in such a way as to compel providers of goods, facilities and services to express a message with which they disagree, unless justification is shown for doing so.

    We also discover, inside this judgement, the reason for the bakery's name...
    Since 2004, the business has been run through Ashers Baking Company Ltd. The name was derived from Genesis 49:20: “Bread from Asher shall be rich and he shall yield royal dainties”.
    Which sounds a bit gay to me.


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    #251
    NCS
    Registered Users Posts: 280 ✭✭NCS


    recedite wrote: »
    That being the situation, the law..We also discover, inside this judgement, the reason for the bakery's name...Which sounds a bit gay to me.

    I, for one, have had a brimful of it.


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    #252
    Hotblack Desiato
    Registered Users Posts: 34,007 ✭✭✭✭Hotblack Desiato


    NCS wrote: »
    I, for one, have had a brimful of it.

    Ah, g'wan down the Cornershop for more...

    Life ain't always empty.



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    #253
    Peregrinus
    Registered Users Posts: 26,092 ✭✭✭✭Peregrinus


    TheChizler wrote: »
    I must try and find some of the original articles, at the time I was tearing my hair out with the frustration at one of their statements to a newspaper. Maybe they phrased it more like "we are defending our right to religious conscience" rather than "it was the message we we refused, not the person".
    Those are not inconsistent, though, are they?


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    #254
    TheChizler
    Registered Users Posts: 9,420 ✭✭✭TheChizler


    Peregrinus wrote: »
    Those are not inconsistent, though, are they?
    Maybe it was the way it was phrased in the article, but it made it sound like they were defending the accusation of discrimination against him, rather than defending their right to refuse to print a message. I'm very possibly getting mixed up with one of the other gay cake/wedding invite cases over the years :o


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    #255
    Hotblack Desiato
    Registered Users Posts: 34,007 ✭✭✭✭Hotblack Desiato


    Photo service withholds images of ‘gay cake’ bakery owners in protest

    In a statement on Thursday, Perfocal founder Tony Xu said one of the service’s photographers had been hired to take photographs of a couple outside the UK supreme court on Wednesday for a “business event”.

    The service subsequently discovered the couple in question was Daniel and Amy McArthur.

    “We later found out that the customer was [UK] charity and lobby group Christian Institute, paying all fees for the family that owned the bakery embroiled in a four-year-long legal case after taking a booking and then refusing to make a cake with the slogan ‘Support Gay Marriage’.

    “It’s been accepted in the highest court in the UK that private companies can accept bookings and then, if they feel that it goes against their morals, refuse that booking . . . and it not be counted as discriminatory.

    “As such, I have made the decision to refuse to hand over the photographs.

    “We appreciate that this looks like tit for tat, and it is. We are proud to have been booked for many religious ceremonies, including Christian, Jewish and Muslim celebrations. We’ve also been booked often for same-sex weddings.

    “In short, we welcome customers from all backgrounds.”

    hah!!!

    Life ain't always empty.



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    #256
    recedite
    Closed Accounts Posts: 13,993 ✭✭✭✭recedite


    I hope our stance serves as an example of exactly where this kind of judgement could lead us. Where does it end?”
    It could end with the "photo service" being taken to court for religious discrimination; ie refusing service to Christians :pac:
    A very foolish publicity stunt, given the knife edge that these issues hang on, and the huge legal fees involved.


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    #257
    recedite
    Closed Accounts Posts: 13,993 ✭✭✭✭recedite


    What Ashers bakery did; refused service to a guy who never claimed to be gay, because they felt they should not be compelled to get involved in his political campaign (which was for something currently illegal).


    What the photo service did; refused service to openly and notoriously Christian lawyers, because the photographers felt they should not be compelled to get involved with Christians receiving justice before the law. So the objection is to the law and to Christians upholding their values.



    They have also said that they photographed other Christians (at weddings) as if this was a defence, but its not. Being nice to one member of the protected class of persons does not entitle you to discriminate against another person later. Its not supposed to be a quota system.


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    #258
    Peregrinus
    Registered Users Posts: 26,092 ✭✭✭✭Peregrinus


    From a legal point of view there may be a more significant difference.

    Ashers rejected the order early on and returned the money in sufficient time for Mr Lee to place the order with another baker; he got the cake he wanted to bring to the party. So they didn’t prevent him from accessing the service he wanted; they just didn’t supply it themselves.

    Whereas the photo agency accepted the booking, took the money, turned up to the event and took the photographs. It was only after the event was over that they decided not to hand over the photographs. Presumably, they will refund the money, but there is no possibility of the customers getting the same service elsewhere. The photo agency has prevented that by not rejecting the order until after the event.

    Of course, this is because the photo agency didn’t know, until the day, what the event was and who their customer was. But that immediately takes them outside the precedent set by the Asher’s case. The photographers had no objection to the service they were asked to provide, and in fact went to far as to turn up to the event and take the photographs. Their objection was to the customer - its identity, its reason for wanting the photographs, and the use they suspected it would make of the photographs. The photo agency would almost certainly have taken and delivered the exact same photographs of the exact same event if their customer had been Mr Lee or the Equality Commission. Whereas Ashers won on the basis that they would not have baked that particular cake for anybody.

    The other significant difference is that Ashers, to fulfill the order, would have been required to express support for gay marriage. I don’t think there’s anything analogous in what the photo agency was asked to do. The court didn’t hold that Ashers were free to reject an order “if they feel that it goes against their morals”; only that they were free to reject an order if requiring them to fulfill it would have contravened their rights of freedom of thought, conscience and religion, and freedom of expression. The photo agency will need to make the case that handing over the photographs will contravene their rights of freedom of thought, conscience and religion, and freedom of expression. While handing over a photograph is, arguably, a form of expression, the photographs themselves do not contain any “support/oppose gay marriage” message, so they are not analogous to the cake.

    Still, I have the faintest suspicion that the Christian Institute is not going to press this issue. Right now, they have a significant legal victory. It may not be to their advantage, legally or in PR terms, to have these questions further litigated.


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    #259
    Hotblack Desiato
    Registered Users Posts: 34,007 ✭✭✭✭Hotblack Desiato


    Peregrinus wrote: »
    Presumably, they will refund the money, but there is no possibility of the customers getting the same service elsewhere. The photo agency has prevented that by not rejecting the order until after the event.

    Fair point.
    The other significant difference is that Ashers, to fulfill the order, would have been required to express support for gay marriage.

    Ah come off it. The printing company doing political posters is not expressing support for the candidate. It's just business.

    Life ain't always empty.



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    #260
    recedite
    Closed Accounts Posts: 13,993 ✭✭✭✭recedite


    Hotblack Desiato wrote: »
    Ah come off it. The printing company doing political posters is not expressing support for the candidate. It's just business.
    For some companies that is the case, especially for big ones, and multinationals. But for small family businesses that are firmly embedded in their local community, it is a different story, they may be run according to family values. And in this case, the clue is literally in the name. The point is, they cannot be compelled to participate, if they don't want to.
    I posed the question earlier in this thread which has been answered now by the UK's SC (thanks for that :pac: )
    Equality cuts both ways. Too many "progressives" think equality legislation is there to force everybody else to step into line behind them. But this case proves that it can also be used to protect people who choose not to follow the prevailing groupthink.
    Its the quid pro quo of equality. So just like women can no longer expect men to open doors for them, or stand up and give them a seat on the Luas, gays and/or minorities of any kind cannot expect everyone else to automatically help with their campaigns.


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    #261
    Peregrinus
    Registered Users Posts: 26,092 ✭✭✭✭Peregrinus


    Hotblack Desiato wrote: »
    Ah come off it. The printing company doing political posters is not expressing support for the candidate. It's just business.
    It's obviously not "just business" for the printing company that rejects the order from the campaign they don't support. If it were just business for them, they'd take the order.


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    #262
    Rhineshark
    Registered Users Posts: 632 ✭✭✭Rhineshark


    recedite wrote: »
    Its the quid pro quo of equality. So just like women can no longer expect men to open doors for them, or stand up and give them a seat on the Luas, gays and/or minorities of any kind cannot expect everyone else to automatically help with their campaigns.

    I don't think minorities ever did. That lead to this whole civil rights thing so that they don't have to rely on majority support just to be able to get on with their own lives.

    They should be able to expect the same service as other customers though.

    As a matter of interest and does anyone know if an atheist cakemaker shoukd be able to refuse a Catholic booking? Atheism is specifically not a religion so are atheists protected from scary messages in the same way that Catholics are?


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    #263
    Peregrinus
    Registered Users Posts: 26,092 ✭✭✭✭Peregrinus


    Rhineshark wrote: »
    I don't think minorities ever did. That lead to this whole civil rights thing so that they don't have to rely on majority support just to be able to get on with their own lives.

    They should be able to expect the same service as other customers though.

    As a matter of interest and does anyone know if an atheist cakemaker shoukd be able to refuse a Catholic booking? Atheism is specifically not a religion so are atheists protected from scary messages in the same way that Catholics are?
    The judgment in this case didn't turn on religion. As it happens, the McArthurs offered religious motivations for their convictions about the undesirability of same-sex marriage, but that wasn't really relevant. They won on the right to free speech; you can't be compelled to say something you don't agree with. Your reasons for not agreeing with it are irrelevant.

    It follows that the atheist baker would win on the free speech ground; he can't be compelled to say something he doesn't agree with.

    For what it's worth, if you fight the case on the freedom of religion ground, the atheist baker would have as strong a case as the Christian baker. "Freedom of religion" includes the right not to profess any religion.


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    #264
    mickydcork
    Closed Accounts Posts: 210 ✭✭mickydcork


    Sensible outcome.

    As I've said before though,let's all just use the non-bigoted bakery up the road now!

    There should probably not be a legal consequence to behaving like this but I'd sure hope there is a social/market consequence!


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    #265
    Nick Park
    Registered Users Posts: 1,573 ✭✭✭Nick Park


    mickydcork wrote: »
    Sensible outcome.

    As I've said before though,let's all just use the non-bigoted bakery up the road now!

    There should probably not be a legal consequence to behaving like this but I'd sure hope there is a social/market consequence!

    There has been a significant social/market consequence, with a dramatic change in Asher's financial position: https://www.belfasttelegraph.co.uk/business/news/bakery-at-centre-of-samesex-cake-row-ashers-sees-profits-top-15m-35689245.html


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    #266
    mickydcork
    Closed Accounts Posts: 210 ✭✭mickydcork


    Nick Park wrote: »
    There has been a significant social/market consequence, with a dramatic change in Asher's financial position: https://www.belfasttelegraph.co.uk/business/news/bakery-at-centre-of-samesex-cake-row-ashers-sees-profits-top-15m-35689245.html

    Oh FFS!


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    #267
    Hotblack Desiato
    Registered Users Posts: 34,007 ✭✭✭✭Hotblack Desiato


    Rather a bit of spin there, their accumulated profit increased by £200k so that was their profit for the year, but the story makes it look like the annual profit was £1.5m

    Meanwhile, all is not rosy in the garden

    https://www.irishtimes.com/news/ireland/irish-news/bakery-at-centre-of-gay-cake-case-closes-belfast-city-centre-outlet-1.3669174

    Life ain't always empty.



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    #268
    Peregrinus
    Registered Users Posts: 26,092 ✭✭✭✭Peregrinus


    Hotblack Desiato wrote: »
    Rather a bit of spin there, their accumulated profit increased by £200k so that was their profit for the year, but the story makes it look like the annual profit was £1.5m
    This.

    Without knowing how much accumulated profit rose by in the previous year, it's impossible to say if the profitability of the business is rising or falling.

    You'd also want to look at profitability not in absolute terms, but as a percentage of turnover. Is that rising or falling? Not enough information in the article to say.


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    #269
    recedite
    Closed Accounts Posts: 13,993 ✭✭✭✭recedite


    Accumulated profit normally accumulates on a monthly basis until the end of the year, when a final figure is announced. If they are not giving any other timespan, then one year would be the default assumption.
    Anyway, it was clearly stated to be £1.3M one year and £1.5M the following year, which is an increase in profitability no matter what way you look at it.


    The city centre fire would have affected all businesses nearby, which is actually stated in the article. The other branches of the bakery are obviously booming.


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    #270
    Peregrinus
    Registered Users Posts: 26,092 ✭✭✭✭Peregrinus


    recedite wrote: »
    Accumulated profit normally accumulates on a monthly basis until the end of the year, when a final figure is announced. If they are not giving any other timespan, then one year would be the default assumption.
    Anyway, it was clearly stated to be £1.3M one year and £1.5M the following year, which is an increase in profitability no matter what way you look at it.
    OK. Bit of hotshot forensic accounting coming up.

    First off: check out the date on the Belfast Telegraph story: 8 May 2017. So we're not talking about the company's recent financial performance here.

    Secondly, unless there's a mole in the bakery (and what would Food Standards have to say about that?) the story is going to be based on publicly available information. So if we look at the Ashers' filings at Companies House, and look for the accounts last filed before 8 May 2017, odds are that's where the information is coming from.

    And those accounts turn out to be the accounts for the period 1 April 2015 to 31 March 2016. Here they are.

    As a small company, Ashers only has to file abbreviated accounts. So there is no Profit and Loss Account. Ashers profit for the year is nowhere stated.

    All there is is a balance sheet, which shows an increase in shareholders funds (made up virtually entirely of retained profits) from 1.38 million (as at 31 March 2015) to 1.55 million (as at 31 March 2016). Almost certainly this is the source of the "growth from 1.3 million to 1.5 million" story in the Telegraph.

    All this tells us is that the company retained profits of (1.55 - 1.38 =) 170k in 2015/16. We don't know if that is there total profit for the year; they may have made larger profits but distributed some to shareholders. We also don't know if that's more or less than the corresponding figure for 2015/14.

    We can find that out by digging up the 2014/15 accounts, but what's the point? Even if we say that retained profits were greater in 2015/6 than in 2014/5, we wouldn't know why. It wouldn't necessarily mean that the underlying business was more profitable; it could equally be that the company had retained more of its profits, and distributed less (which would not make the owners of the company feel any more prosperous). Or that the directors pay and remuneration had been cut, thus reducing expenditure and boosting profits.

    So, basically, we know nothing of any significance, except that the effect of the publicity surrounding the case had not been to render the company insolvent by 31 March 2016.


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    #271
    recedite
    Closed Accounts Posts: 13,993 ✭✭✭✭recedite


    The link above does not work BTW. I agree there is no point digging any further unless you are a mole (and there are no moles in Ireland).
    The principle of Occam's Razor, however, would suggest that if a company is able to accumulate and retain more profits than in the previous year, then it is doing well.


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