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The U.K. Supreme Court has made the mistake of conflating speech with conduct in the gay marriage cake case
Bakeries in the U.S. and the U.K. have become the latest sites of contestation about fundamental rights. In June, the U.S. Supreme Court upheld a Christian baker’s right to refuse to bake a cake for the wedding of a gay couple. On October 10, the U.K. Supreme Court held that a baker’s refusal to bake a cake with a message in support of gay marriage does not constitute unlawful discrimination. However, while undertaking its analysis on discrimination on the basis of political belief, the court went much too far in identifying the contours of the freedom of speech in this debate.
One of the important arguments was whether a message printed on a cake would be conceived of as speech not just of the customer, but also of the baker. People typically see a sculpture or painting as embodying the message of the sculptor or artist. On the other hand, we are unlikely to assume that a printing shop necessarily associates with the messages of each of the banners it prints.
Is the “support gay marriage” cake akin to the painting or the banner? Instead of engaging with this question, the court chose to sidestep it entirely — noting that by simply “being required to produce the cake”, the bakery was being requested to express a message with which it disagreed. Put simply, the court made the mistake of conflating speech with conduct. Baking a cake does not constitute speech in and of itself. If it did, then by the same logic, the local printing shop could legitimately refuse to print banners bearing messages with which is disagrees.
The neighbourhood café could refuse to brew coffee for some prospective customers because of the “expressive” element involved that task. The court failed to recognise that it also does no favours to the free speech project by extending it beyond its remit.
In a peculiar turn of events after the judgment was delivered, an agency that was hired to take photographs of the owners of the bakery upon their success at the court refused to complete the project and hand over the photographs. If it is established that they did so based on the sexual orientation or political beliefs of the owners, the photographers could themselves be held liable for unlawful discrimination. The U.K. Supreme Court’s observations on free speech, however, might just save them.
Source:https://www.thehindu.com/todays-paper/tp-opinion/bittersweet-judgment/article25500475.ece
