US Supreme Court sides with Christian graphic designer who refused to create same-sex wedding website

[SerendipityJane]

Not sure quite what this means. None of us approves of forced speech, and yet ?

https://news.sky.com/story/us-supreme-court-sides-with-christian-graphic-designer-who-refused-to-create-same-sex-wedding-website-12912559

I find it fascinating how difficult some people find it to get their heads round the provisions in the Equality Act as applicable to religion and belief. Since it's actually not that complicated, I wonder whether it comes from some kind of unacknowledged cognitive dissonance, along the lines of "Equality Act good, wongthink bad"...

The sense in which I would agree it would be "forced speech" is that you are being forced to contribute to spreading a certain message. But that also applies to hiring a venue.

The sense in which it is "forced speech" is that someone would be forced to say something they don't want to say. HTH.

And that argument doesn't hold water. Except, I suppose, insofar as if you sell a guitar to a trendy vicar you are "forced to contribute" to Shine, Jesus, Shine. Or if you rent a flat to a Catholic couple you are "forced to contribute" to them indoctrinating their children under your roof. Or if you sell cough sweets to TRAs you are "forced to contribute" to their retained ability to shout slogans. So no, you are not allowed to discriminate on the ground of a protected characteristic while providing a service, unless what they are asking you to do is in some way visibly (audibly) to align yourself with their values or beliefs.

Anyway, that's the law. However, I'm not sure whether your argument is that the Equality Act is bad legislation - if it is, forgive me for missing the point and please give us your reasoning for why religion etc should not be a protected characteristic.

With lots of small companies in printing they probably aren't all going to go against religion.

Also there are enough Christian churches to be able to team up and do their own printing if it really became necessary.

It costs you more?

Well you can argue that there is a balance that, at least sometimes, private companies may be able to ethically object to being involved in certain activities, even if they are tied up with protected characteristics.

@IWillNoLie
I think you mis read sorry.
If the printer Bikechic mentioned above refuses to print all religious material irrespective of religion thats not discrimination because it's applied equally.

From what Bikechic said the printer didn't want to print "anything that promotes religion". But the printer would print other material from the same people as long as it didn't "promote religion". In this case it's not the customers but the type of material that the printer appears to reject. As long as they apply this policy to all religions equally I assume it's fine.

So no, you are not allowed to discriminate on the ground of a protected characteristic while providing a service, unless what they are asking you to do is in some way visibly (audibly) to align yourself with their values or beliefs.

Your argument isn't clear to me, but with the cake message example, I don't think it does involve to "visibly align yourself with their values". No one would reasonably think that the baker is speaking for themselves rather than just fulfilling an order.

Maybe you can spell out a certain meaning for "visibly align" that you think is relevant here.

@PorcelinaV
To refuse to sell an off the shelf cake ( with no requested messages ) based on protected characteristic of the buyer is discrimination. Because you are refusing a service open to everyone else and thus discriminating. The act of selling a standard cake is not considered speech. Selling a cake is not considered supporting their cause/beliefs or an infraction of your own. Just sell them the cake and take the money.

Refusing to put a message you disagree with on that same cake is a different thing because it is compelled speech. The act of writing the message on the cake that you object to is what makes this different.

Just sell the the cake and tell them to put their own message on it.

In discussions like these it's worth remembering that often, the answers the law settles on aren't perfect - there is no perfect answer.

What there should be is an attempt to balance interests.

You can make a good argument that private business owners should be able to rent premises or do work, or not do those things, for anyone they choose. And for the most part that's true, it's part of their free choice.

Where we restrict that in regards to protected characteristics, we are restricting their use of their own property and skills, absolutely, the state is doing that. The justification is that allowing certain kinds of discrimination is so socially harmful that it is worth the state stepping in.

It's not even just about harm to individuals. If I won't hire my hall out to someone because of his bad fashion sense, that might be just as bad for him as me refusing some other guy because he is black, and might reflect me being an asshat in both cases. But the social harms of the latter are wider and more impactful (arguably, for now.)

On the other hand, that kind of law potentially impacts some groups freedom of belief, freedom of speech, or mission in terms of intellectual or religious or political activism. So the law allows certain kind of exceptions, because the larger harms to democracy would be severe.

There could be other ways to balance it. The loss and gains on all sides are not easy to weigh. And needs might change over time, what was working 100 years ago might not work now.

I do think where we run into trouble can be where protected characteristics are brought in that are around really socially controversial ideas. Gender identity is interesting in that light because no one really seems to know what the heck it is supposed to mean very clearly. (So in a certain sense, they only work smoothly where they are largely socially accepted already. )

And the more of protected categories there are, the more we are restricting what people can do in line with their belief systems, which is a good argument for being very conservative about defining them.

Except, I suppose, insofar as if you sell a guitar to a trendy vicar you are "forced to contribute" to Shine, Jesus, Shine. Or if you rent a flat to a Catholic couple you are "forced to contribute" to them indoctrinating their children under your roof.

Again, not sure what you are arguing here.

But in the first example you likely wouldn't even know what the trendy vicar wanted it for, and the second example I don't think anyone would attribute responsibility in that situation. And probably we don't want discrimination in housing and that's an overriding concern.

I don't think it's equivalent to something like (1) printing propaganda for an organisation, or (2) providing a meeting space for an organisation.

That's far more directly connected to political or religious activism, and you could maybe be considered responsible at least sometimes for being involved.

So you could be seen as blameworthy for printing off questionable religious propaganda, in a way that you wouldn't be for merely renting a flat to a religious couple with kids.

Ok, well that would depend on whether printing religious material you didn’t agree with came under the Asher judgement - is it forced speech? If so then you could just not print religious material for the religion/belief/political viewpoint you disagree with. You wouldn’t matter if you only objected to certain religious texts but were fine with humanists for example. It would be about forced speech not discrimination. But it is not clear whether this would be covered as the Asher judgement separated out the phrase ‘support gay marriage’ from the protected characteristic of sexuality of the purchasers. That distinction might not be drawn between eg orders of service for mass and Catholicism.

If it was not considered forced speech, then it would be clear discrimination to not print religious material if you would print non religious material. The fact you discriminated equally against all non-white individuals would not mean you are not discriminating against black people.

Your argument isn't clear to me, but with the cake message example, I don't think it does involve to "visibly align yourself with their values".

My argument was simply that discrimination on the basis of someone's beliefs is not the same as refusal to accept the truth or rightness of those beliefs. It is certainly a rather clumsy phrase - I was attempting to address the fact that you seem to struggle with the distinction between (on the one hand) providing a service to someone with whom you disagree, and (on the other) pretending you agree with them. I'm not sure how I can say that more plainly. Would you find "express views you disagree with" easier to understand? If it helps, here is the relevant piece of the summary of the Supreme Court judgement, which is probably about as clear as anyone can be:

"The rights to freedom of thought, conscience and religion (article 9) and to freedom of expression (article 10) were clearly engaged by this case [49]. They include the right not to be obliged to manifest beliefs one does not hold [52]. The McArthurs could not refuse to provide their products to Mr Lee because he was a gay man or because he supported gay marriage, but that was different from obliging them to supply a cake iced with a message with which they profoundly disagreed [55]."

Except, I suppose, insofar as if you sell a guitar to a trendy vicar you are "forced to contribute" to Shine, Jesus, Shine. Or if you rent a flat to a Catholic couple you are "forced to contribute" to them indoctrinating their children under your roof.

Again, not sure what you are arguing here.

As I understand it, your argument was that providing a service to someone (e.g. allowing them to meet in your space) might enable them to promote their beliefs, and that therefore you were "forced to contribute" to the furtherance of their (objectionable) views, even if you did not express those views directly yourself. Therefore, you appeared to be saying, it was an infringement on your right to freedom of speech equivalent to a demand that you express those views as if they were your own. I was pointing out the logical implication of this argument, i.e. that if it were so, you would be justified in refusing service in many situations which at the moment would clearly be illegal.

Essentially you seem to be arguing for the removal of "religion or belief" as a protected characteristic, which is not in itself an incoherent position (although it is a totalitarian one). As DemiColon's excellent post points out, there are balances and compromises to be made, and for some people the lines have been drawn in the wrong place. (Hence, for example, the need for the Grainger criteria, and the arguments about whether beliefs are Worthy of Respect in a Democratic Society, etc.) But if so, you have to live with signs in shops that say "No Jews" or "No Muslims" or indeed "No feminists". Are you happy with that?

I do think it's worth considering what might happen if we did allow that kind of discrimination. Not to approve it, obviously, but in terms of it not being illegal for businesses and individuals to, say, rent a room to whomever they liked, or not. Or have them in a shop.

We tend to take it as read that it would be a disaster, I suspect it might play out in a much more complicated way.

If it was not considered forced speech, then it would be clear discrimination to not print religious material if you would print non religious material. The fact you discriminated equally against all non-white individuals would not mean you are not discriminating against black people.

Would it, though? When I first read this I thought yes, of course, that's right. But later I wasn't sure. What matters is whether you offer the same service to everyone, regardless of their beliefs. You're not looking for a comparator for the service you provide (or not), but for the person you provide it to.

I think maybe refusing a service to everyone (assuming everyone has a religion or lack of religion of some kind, even if it's only "meh") is OK. So saying "I will not print anything religious (or anti-religious) for anyone" is not discriminating, because you have one rule for everyone, which is applied regardless of their belief or lack of belief. Obviously this only works if you include "anti-religious" in the refusal - but there's a big difference between "anti-religious" and "non-religious". I.e. "nothing on this topic, don't care what it says".

Or is it indirect discrimination, on the basis that some people might have a greater need to access printing of religious materials than others? Argh. I don't know. It might be comparable to refusing to provide sanitary bins and defending yourself by saying there aren't any for the men either. But I'm pretty sure that the crucial thing is whether the service you offer changes depending on the characteristics of the person you are dealing with, and that a blanket refusal that genuinely applies to everyone is fine.

We tend to take it as read that it would be a disaster, I suspect it might play out in a much more complicated way.

This is an interesting point. I know that because I'm very aware of how useful the Equality Act has been for e.g. GC feminism recently, I tend to assume it is very much a Good Thing - but with all laws, how they play out is much more complex and nuanced than we sometimes acknowledge.

My argument was simply that discrimination on the basis of someone's beliefs is not the same as refusal to accept the truth or rightness of those beliefs. It is certainly a rather clumsy phrase - I was attempting to address the fact that you seem to struggle with the distinction between (on the one hand) providing a service to someone with whom you disagree, and (on the other) pretending you agree with them. I'm not sure how I can say that more plainly.

There isn't any example here where you need to "pretend you agree". You can produce a cake with a message, without needing to pretend you agree with the message.

What I'm saying, is that there isn't an obvious significant difference, that would make refusing service clearly acceptable in one case, but clearly unacceptable in another, between (1) producing a cake with a message you disagree with, and (2) hiring a venue out. Note that hiring a venue out may well involve your site displaying various messages with which you strongly disagree. So posters inside, or advertising outside the venue.

Even if you could find a technical legal difference between the cases, what is the real difference that means people would think it morally acceptable in one case, and clearly bad discrimination in the other?

Now think about it where the media are also discriminating and pushing a specific ideology supported by a government. Very quickly things get polarised - good people and ‘bad’ people who can be discriminated against. ‘Bad’ people are not recruited to jobs, or lose their jobs, lose their bank accounts, they are not allowed to meet up and their voice is silenced, the police ignore crimes against them whilst arresting them for infractions of laws which prevent free speech, children in schools are taught by discriminatory teachers what it is to be a ‘bad person’ and how they must follow the supported ideology and are taught a government imposed curriculum on what constitutes acceptable thoughts. Networks of places are set up where the public can report wrong think to the police anonymously, including wrong think in the home at the dinner table. Children excluded from school for wrong think.

Sounds pretty fascist to me.

It would play out with non-white people, NI catholics, and disabled people being treated in the same way they were treated before the legislation that culminated in the Equalities Act was introduced.

What confuses this issue is that race, age, religion, disability, sex, are protected classes in the US, being a member of the LGBTQ community is not. Previous presidents could have pushed for their inclusion in the protected classes but they didn't. In theory it is legal to refuse business services, medical care, housing, education, jobs to members of the LGBTQ community purely because they belong to that community. The only exception being emergency medical care and even that would just mean stabilizing them enough so they can leave the hospital under their own steam.

One of my DC is part of that community, another reason we were glad to leave the states after 30 years of living there. They honestly didn't feel safe visiting some states.

Indeed, this already can and does happen, just not around things that are protected characteristics. (At least not officially.)

So in a way what we get are certain categories that are excluded from that kind of treatment, while others aren't. And it doesn't always have to be direct discrimination either, if a certain type of exclusion seems to fall on a particularly named group more often, even if that isn't the goal, it will still be considered discrimination and often be illegal.

In some ways it makes sense then that we see more and more people wanting to identify as being members of protected groups, or having the groups protected be widened..

I don't think it's at all clear that would be the case. Social attitudes have changed significantly in many places since then, and the economy has changed too which might be more important in the end.

You're having a laugh. We literally had race riots in Leicester last year. Incidents of anti-semitism are through the roof. Disabled people are still left on planes for hours because airlines fail in their duties. Women with children still suffer indirect discrimination in housing. Children still suffer (legally, unfortunately, due to the exceptions in EA) religious discrimination in education.

For these laws to not be required, social attitudes would have to change everywhere, not "in many places". Until they do (which they never will) we need the force of law.

Under the US constitution, freedom of speech is protected. It is traditionally interpreted liberally - “speech” isn’t limited to using your physical voice. It includes writing, music, wearing t-shirts with slogans. Writing a message on a cake would 100% be considered speech. “Compelled speech” is generally prohibited. Because the interpretation of “speech” is broad—which I think most people agree is a good thing—the interpretation of compelled speech is also broad.

Our law about public accommodation springs from an entirely different part of the Constitution (interstate commerce). It’s generally prohibited to discriminate in places of public accommodation. The original rule came from a case where race was the issue but I think this has been extended to sexuality although I’m not sure it’s been litigated to this level. So I can imagine a case where a venue would have to serve a wedding banquet for a gay wedding but could not be compelled to put “God loves gay marriage!” on their outdoor sign.

I hate how this particular case came out but I think protecting freedom speech (which includes prohibiting compelled speech) is extremely important.

I’d also like to add that I think the outcome suited the majority just fine.

This whole legal thing is a minefield and every time I think I get it, some poster posts a different scenario that would / wouldn't work and I'm confused again.

If they had tried a different defence, then who knows?

They tried to defend on one ground, (they cancelled because of security concerns), and the court didn't believe them.

If they had refused to enter into an agreement in the first place, and tried a "freedom of expression" defence, it's a different question that the court would be looking at.

Anyway, regardless of what would have happened, even if someone can come up with legal reasoning to say that this is different to the "cake message" case, and you can't legally refuse service when hiring out a venue just because you dislike the message...

I would still ask what is the significant difference that would make most people think it's morally acceptable to refuse in case A, but clearly bad discrimination in case B?

It's not about 'innateness'. It's about protected characteristics.
Both religion and race are protected characteristics. So in the same way that a Muslim outlet might refuse to make something with pork in it, they might refuse to make something with an LGBT message.

I'm not sure what other protected characteristic prohibits dealing with people of a different race, unless someone invents their own religion just for that. It probably already exists.

Since your original comment was about 'non-white' people I'd just like to point out that the Leicester riots had nothing to do with them! It was between Hindus and Muslims. Based on developments in India.

Ironically if people were less 'multicultural' and thought of themselves as British nationals altogether instead of staying firmly in their little religious/national groups this wouldn't have happened.

FTR I'm of Indian descent, Hindu, from another multicultural country. Can't understand why there are such large groups of people born and raised in the UK who are much more 'traditional' than I am and have never mixed outside their own race/religion. As much as I disagree with France's extreme of banning all religious symbols in public there has to be some integration.

People will come on board and say 'oh but there are all white villages' - well of course, the UK is a white country, you can't avoid that statistically unless you moved token non whites around. Just like how you wouldn't be shocked at finding loads of Indians in India.

My English husband's village is predominantly white, treated me very well, no racism. So was his grandfather's home, again very white, on the Scottish border.

I got cat called and stared at by my 'own' people just because I wore a short skirt walking through a 'brown' area. Got rude comments from British Muslims because I am Hindu.

But of course... All the racism rhetoric always blames white people.

I'm sticking to the white areas thanks where I can wear what I like and nobody insults me.

I’m unclear as to how getting rid of the Equalities Act would improve the situations you describe.