Gay Cakes and the Concept of a Legitimate Customer

For some reason, bakeries have found themselves at the forefront of the culture war between gay rights and freedom of religion activists, with cases in both the UK and the US recently ending up in their respective Supreme Courts. Fortunately, the last person I know who opened a bakery was a senior and highly capable lawyer. These two points may be entirely unconnected.

In this post I will be focusing more on the UK case as I am more familiar with UK law, but many of the underlying principles apply in both cases.

The circumstances

In the US, the Supreme Court ruled by 7:2 in favour of a Colorado baker, Jack Philips, who refused to make a wedding cake for a gay couple, though held the door open for rulings to go the other way in future cases. In the UK, the Supreme Court is currently deliberating on the case of Ashers Bakery, who refused to make a cake iced with the slogan, "Support gay marriage." Lower courts have so far sided with the customer who ordered the cake, but

Before proceeding, we should emphasise that, in the words of President of the Supreme Court, Lady Hale, "These cases are by definition complex and difficult." This is not a simple case of refusing to serve gay customers, which would very obviously be wrongful discrimination. Both Philips and the Ashers have served other gay customers. In the US, Philips offered to sell the customer any cake off the shelf; in the UK, the Ashers' defence rests on the fact that it is the message, not the customer, they object to: they have stated that they would refuse to sell a cake bearing that message to any customer, gay or straight (and there are, after all, many straight people who campaign for gay marriage). Whether or not these defences are valid lie at the heart of the cases.

Other relevant considerations

It's worth noting that same-sex marriage is currently illegal in Northern Ireland, where the Ashers are situated, meaning that the slogan in question - "Support gay marriage" - is a live political issue. In the UK and the US (unless they lived in California, New York or the District of Columbia which ban political discrimination(1)), a baker - or any other business - would be allowed to decline to produce a slogan with other political slogans on it, such as 'Vote for May', 'Vote for Corbyn', 'Vote Remain', 'Vote Leave', 'Build that wall' or 'Support Obamacare'. They would also be allowed to refuse to produce cakes for most types of occasions if they felt offended by them, for example a 'Brexit Independence Day Party cake' or a 'Ding Dong The Witch is Dead Party cake' (and I can think of many people who would find each type of party offensive). And, of course, in many cases one can simply refuse to serve a customer, as Sarah Huckabee Sanders recently discovered.

Ironically, perhaps one of the few other situations in which a baker might not be able to refuse to make a cake would be if a gay baker tried to refuse to make an 'Oppose gay marriage' being commissioned by a Christian - as then we once again have a link to a protected characteristic, in this case religion.

Regardless of our overall views, I think we have to admit that this is odd. A situation in which a business can refuse to print some (legal) political slogans, but is not allowed to refuse to print others, based on fairly arbitrary criteria, seems very hard to defend.

Concept of a legitimate customer

There is a reasonable case to make that if you set up in business, you should be required to serve all customers, not just those who you agree with, politically or religiously. It would, after all, be very inconvenient if the Conservative party had to shop around to find a right-wing printer to print their brochures whilst the Labour party had to similarly find a left-wing printer to print theirs. If activists had to check out the political affiliation of the shops they wished to do business with, instead of just being able to place an order online.

A counterargument would go that businesses can already refuse to serve people in this way and, in the overwhelming majority of cases, don't do so. A printer will happily print literature for both Conservative and Labour because they're in business to make money, not to make a political point - and that's without even adding in other negative impacts, such as potential boycotts. Huckabee Sanders may have been turned away from one restaurant, but we can presume she can still find plenty of other places to eat. On the other hand, if we think that everyone has the right to be served anywhere, maybe even a few cases of refusal is too many.

If one believes that businesses must serve everyone, one way forward would be to legislate to introduce the concept of a 'Legitimate Customer' - i.e. any customer who is requesting a normal service that that business would usually provide. Just like legal tender, a Legitimate Customer would have to be served, without need for complicated legal cases as to the specifics.

The law would need to be carefully crafted, to allow for cases such as a bar owner refusing to serve a too-drunk customer, or to allow the refusal of vexatious orders (such as a request for 10 million cakes, which would take a year's production to fulfill). But in principle it could be done and would clearly establish the principle that businesses could not turn customers away for disagreeing with them.

Implications and Compromises

The Legitimate Customer concept sounds appealing - and in many ways it is. It's generally good to put the rights of individuals above the rights of corporations. But what about the downsides? What if you're an independent businessperson - a printer or baker - and a fairly extreme group, such as the BNP or the Socialist Workers Party asks you to print a slogan that, whilst legal, you find extremely offensive? What if they like the quality of your work so much that they make you their main supplier, asking you to print out these slogans every week? This seems not very pleasant.

One compromise could be to say that small businesses - say, those that employ 10 or fewer people - are exempt from the Legitimate Customer principle, on the grounds that those businesses are very much synonymous with the individual people who own them, whereas big businesses are not. As a customer, the corner shop might refuse to serve you, but you'd know you could served by Tesco or Walmart. Well, that solves the practical problems ('can I get served') but not the principles-based ones, of the offence caused by non-service.

Furthermore, why should only business owners be protected? What about the poor employee in the big business, who actually has to do the printing: why should the small business owner be allowed to refuse, but not them? For that matter, that's an issue at the moment: even if businesses can refuse to print political slogans, an individual employee in that business could be fired for doing so.

Conclusion

Overall, there are no easy answers here. It seems hard that businesses should be forced to support political action with which they fundamentally disagree. But it seems equally hard that people should be forced to shop around to find a business that will produce what they want. Even the concept of the Legitimate Customer has its problems, no matter how it's applied.

With regard to the Ashers, I can see an argument that people should be forced to produce political slogans regardless of their own beliefs and I can equally see an argument that they should be allowed to decline; however, I find it hard to see that which of those is the case should depend on the exact nature of the political cause in question.

(1) Actually it gets more complicated than this, as some other states ban political discrimination against employees but allow it against customers, with increasingly complex distinctions, but broadly, it's correct to say that in the vast majority of the UK and US you can turn away customers based on political affiliation.

Personal note: I am straight and do not identify as Christian. I support same sex marriage but, on balance, think people should probably be allowed to refuse to print political slogans they don't agree with.