Author Topic: Ashers cake controversy.  (Read 43248 times)

David McKeown

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Re: Ashers cake controversy.
« Reply #585 on: October 12, 2018, 08:45:18 PM »
Yes but if you read the judgement the ratio is more clearly the lower court erred on how widely they interpreted dissociable discrimination. On the facts of this case Mr Lee was not discriminated against on the basis of his sexuality or political opinion.

It stopped well short of saying any business has the right to refuse a bespoke job and such an interpretation is not close enough to describe current anti discrimination law.

Could you explain what "dissociable discrimination" means? Thanks in advance

A discrimination claim can only be brought on certain protected characteristics such as age sex, sexual orientation etc. Dissociable discrimination is when the discrimination is not directly on one of those characteristics but is on some other ground whereís its impact is so extreme that it May as well be on one of those characteristics.

The example the Supreme Court gave was when a swimming pool discriminated on the basis of whether the customer was eligible for state pension or not. Being eligible for state pension is not a protected characteristic per se however the impact was such that it de facto amounted to age and sex discrimination on the basis that only over 60 year old women and only over 65 year old men were being discriminated against.

Originally the courts here held that support for gay marriage was dissociable from a persons sexuality and political beliefs on the basis that realistically the only people who would want a cake with a support gay marriage message would be those of certain sexualities and/or political beliefs.

David McKeown

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Re: Ashers cake controversy.
« Reply #586 on: October 12, 2018, 09:04:21 PM »
It stopped well short of saying any business has the right to refuse a bespoke job

Any business DOES have the right to refuse to do a bespoke job! It happens every day across the world.

How the court didn't just say that this is an instance of that I don't know. Instead they've left things vague and already I see a bad interpretation of it being applied in an attempt at reciprocity.



[I'm kinda amazed that you are even suggesting that any customer can demand a business perform a dedicated/bespoke piece of work for them - even if that business has no wish to perform the work.]

Iím not suggesting a customer can demand a business perform a dedicated bespoke piece of work what I am saying and what the Supreme Court have said is that if they are to turn down work they can not do so in such a way as amount to discrimination. For example in one of your earlier examples you mention about making a car at a ludicrously cheap amount. A business could refuse to do that for everyone on the basis of it not being cost effective. They could however not agree to do it for me but refuse to do for someone else on the basis of their skin colour.

Similarly they couldnít refuse to do it because and I just use the example the Supreme Court did, for me but agree to do it for my father on the basis he is eligible for state pension and I am not. That would be dissociable discrimination.

What would have been interesting is whether or not Ashers would have been discriminating against Mr Lee had he asked for a photo of himself and the message ďproud to be gayĒ and Ashers refused that.

hardstation

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Re: Ashers cake controversy.
« Reply #587 on: October 12, 2018, 09:08:36 PM »
Would Ashers make a cake with Mr Leeís picture and ďProud to be gayĒ for anyone?


David McKeown

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Re: Ashers cake controversy.
« Reply #588 on: October 12, 2018, 09:16:43 PM »
Would Ashers make a cake with Mr Leeís picture and ďProud to be gayĒ for anyone?

Thatís why I think it would be interesting. Realistically it would be a lot harder to suggest that someone who isnít gay would ever request a cake like that. The Supreme Court judgement to me isnít clear whether this example would be dissociable discrimination.

Olly

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Re: Ashers cake controversy.
« Reply #589 on: October 12, 2018, 09:30:42 PM »
I'm shocked by this decision. If I went into a Spar shop and said to the cashier that I would like a gay magazine they would get it for me no questions asked and take my £4.99. Why is the cake shop being different? You often find that people who don't like homosexuals are usually half inclined to like them secretly. It's like people who hate other things like the Chinese or vinegar. They are usually eating Chineses or eat products with loads of vinegar on them naturally like beetroot or pot noodles.
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hardstation

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Re: Ashers cake controversy.
« Reply #590 on: October 12, 2018, 09:42:46 PM »
Would Ashers make a cake with Mr Leeís picture and ďProud to be gayĒ for anyone?

Thatís why I think it would be interesting. Realistically it would be a lot harder to suggest that someone who isnít gay would ever request a cake like that. The Supreme Court judgement to me isnít clear whether this example would be dissociable discrimination.
I donít really follow. Someone could send their ma down to order it if they hadnít the time. Ashers would refuse her too.
I donít see how there could ever be a situation whereby we can be certain that only gay people would order a particular cake.


macdanger2

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Re: Ashers cake controversy.
« Reply #591 on: October 12, 2018, 09:44:54 PM »
Yes but if you read the judgement the ratio is more clearly the lower court erred on how widely they interpreted dissociable discrimination. On the facts of this case Mr Lee was not discriminated against on the basis of his sexuality or political opinion.

It stopped well short of saying any business has the right to refuse a bespoke job and such an interpretation is not close enough to describe current anti discrimination law.

Could you explain what "dissociable discrimination" means? Thanks in advance

A discrimination claim can only be brought on certain protected characteristics such as age sex, sexual orientation etc. Dissociable discrimination is when the discrimination is not directly on one of those characteristics but is on some other ground whereís its impact is so extreme that it May as well be on one of those characteristics.

The example the Supreme Court gave was when a swimming pool discriminated on the basis of whether the customer was eligible for state pension or not. Being eligible for state pension is not a protected characteristic per se however the impact was such that it de facto amounted to age and sex discrimination on the basis that only over 60 year old women and only over 65 year old men were being discriminated against.

Originally the courts here held that support for gay marriage was dissociable from a persons sexuality and political beliefs on the basis that realistically the only people who would want a cake with a support gay marriage message would be those of certain sexualities and/or political beliefs.

Cheers

Main Street

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Re: Ashers cake controversy.
« Reply #592 on: October 12, 2018, 10:38:03 PM »
Would Ashers make a cake with Mr Leeís picture and ďProud to be gayĒ for anyone?

Thatís why I think it would be interesting. Realistically it would be a lot harder to suggest that someone who isnít gay would ever request a cake like that. The Supreme Court judgement to me isnít clear whether this example would be dissociable discrimination.
That still falls under  "obliging them to supply a cake iced with a message with which they profoundly disagreed" as a matter of religious conscience.
Profoundly being the key word.
And it also still falls under this peculiar form of blatant cynical entrapment.




David McKeown

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Re: Ashers cake controversy.
« Reply #593 on: October 12, 2018, 10:52:33 PM »
Would Ashers make a cake with Mr Leeís picture and ďProud to be gayĒ for anyone?

Thatís why I think it would be interesting. Realistically it would be a lot harder to suggest that someone who isnít gay would ever request a cake like that. The Supreme Court judgement to me isnít clear whether this example would be dissociable discrimination.
That still falls under  "obliging them to supply a cake iced with a message with which they profoundly disagreed" as a matter of religious conscience.
Profoundly being the key word.
And it also still falls under this peculiar form of blatant cynical entrapment.

Oh I donít disagree about this example being entrapment.

On your other point the Supreme Court seemed to me to suggest that they considered religious consciousness against a background of discrimination on the basis of political opinion and how the owners own rights to free expression of their genuinely held beliefs could and should be balanced in that context. They seemed to draw a distinction though at least by my reading in so far as they seemed to make no comment on what may have occurred had this to be discrimination based on sexual orientation and there is a clear difference between the two. One is an inherent charatistic of a person whilst the other is acquirred. Not saying it necessarily would have made a difference but I got the impression reading the judgement that it may have but having reached the decision no dissociable discrimination on the basis of sexual orientation it didnít arise in this case and courts try to never make decisions they donít have too.

omaghjoe

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Re: Ashers cake controversy.
« Reply #594 on: October 12, 2018, 10:56:44 PM »
Would Ashers make a cake with Mr Leeís picture and ďProud to be gayĒ for anyone?

Thatís why I think it would be interesting. Realistically it would be a lot harder to suggest that someone who isnít gay would ever request a cake like that. The Supreme Court judgement to me isnít clear whether this example would be dissociable discrimination.

Sounds more like a cake lads would have done for a gag than anything a gay person would request.

David McKeown

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Re: Ashers cake controversy.
« Reply #595 on: October 12, 2018, 10:58:59 PM »
Would Ashers make a cake with Mr Leeís picture and ďProud to be gayĒ for anyone?

Thatís why I think it would be interesting. Realistically it would be a lot harder to suggest that someone who isnít gay would ever request a cake like that. The Supreme Court judgement to me isnít clear whether this example would be dissociable discrimination.
I donít really follow. Someone could send their ma down to order it if they hadnít the time. Ashers would refuse her too.
I donít see how there could ever be a situation whereby we can be certain that only gay people would order a particular cake.

There will always be extreme examples that could be used to argue against dissociable discrimination Which is why I wonder just how wide is discrimination. The first two courts definition was rejected as being too wide but no real guidance was given by the Supreme Court how wide it actually is.

David McKeown

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Re: Ashers cake controversy.
« Reply #596 on: October 12, 2018, 11:01:04 PM »
Would Ashers make a cake with Mr Leeís picture and ďProud to be gayĒ for anyone?

Thatís why I think it would be interesting. Realistically it would be a lot harder to suggest that someone who isnít gay would ever request a cake like that. The Supreme Court judgement to me isnít clear whether this example would be dissociable discrimination.

Sounds more like a cake lads would have done for a gag than anything a gay person would request.

Perhaps itís a poor example. The point Iím trying to make is I wonder now how wide dissociable discrimination is. The Supreme Court accepts it does exist and is outlawed by anti discrimination law but Iím not sure how much protection it affords.

Main Street

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Re: Ashers cake controversy.
« Reply #597 on: October 13, 2018, 11:07:34 PM »
Would Ashers make a cake with Mr Leeís picture and ďProud to be gayĒ for anyone?

Thatís why I think it would be interesting. Realistically it would be a lot harder to suggest that someone who isnít gay would ever request a cake like that. The Supreme Court judgement to me isnít clear whether this example would be dissociable discrimination.

Sounds more like a cake lads would have done for a gag than anything a gay person would request.

Perhaps itís a poor example. The point Iím trying to make is I wonder now how wide dissociable discrimination is. The Supreme Court accepts it does exist and is outlawed by anti discrimination law but Iím not sure how much protection it affords.
in this case the supreme court came to  a good judgement, not just good but very good. But is it a judgement for the ages? I don't think so. The  dependency that the british legal system puts  on precedence is not appropriate when the law has to get involved with the shifting sands of modern day social interaction.

David McKeown

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Re: Ashers cake controversy.
« Reply #598 on: October 14, 2018, 09:29:02 PM »
Would Ashers make a cake with Mr Leeís picture and ďProud to be gayĒ for anyone?

Thatís why I think it would be interesting. Realistically it would be a lot harder to suggest that someone who isnít gay would ever request a cake like that. The Supreme Court judgement to me isnít clear whether this example would be dissociable discrimination.

Sounds more like a cake lads would have done for a gag than anything a gay person would request.

Perhaps itís a poor example. The point Iím trying to make is I wonder now how wide dissociable discrimination is. The Supreme Court accepts it does exist and is outlawed by anti discrimination law but Iím not sure how much protection it affords.
in this case the supreme court came to  a good judgement, not just good but very good. But is it a judgement for the ages? I don't think so. The  dependency that the british legal system puts  on precedence is not appropriate when the law has to get involved with the shifting sands of modern day social interaction.

I foresee an introduction to jurisprudence essay question here. Do what extent do judges make the law?

Iíve no issue with the judgement in this case. I think itís a very difficult issue and Iíve been swayed both ways as the judgements have issued and I can see merit in both sides of the coin.