NEW YORK, Dec 5 (Thomson Reuters Foundation) - Court fights over cakes for same-sex couples in the United States and Northern Ireland are just the icing on a deeper debate about gay rights and whether services can be refused to certain people, experts said on Tuesday.
In Belfast, a bakery was found guilty of discrimination for refusing to make a cake with the words “Support Gay Marriage,” while the U.S. case before the Supreme Court on Tuesday concerns a baker refusing to sell a cake to a gay couple for a wedding.
Both cases feature a bakery, a cake and a refusal to sell to a same-sex couple although laws in the two countries differ - but experts say the real issue is whether it is permissible to refuse a service to some.
“This is a very slippery slope,” Sarah Kate Ellis, head of GLAAD, an LGBTQ rights group, told the Thomson Reuters Foundation, ticking off incidences such as medical care where being turned down could have drastic consequences.
“I’m a gay mom and having my children refused being treated in an emergency situation is terrifying ... This is way more than about cake.”
The U.S. Supreme Court heard arguments Tuesday in the 2012 case of a baker at Masterpiece Cakeshop in Colorado who said selling a cake for a gay wedding violated his religious beliefs.
His lawyers argue his cakes are artistic endeavors protected as free speech and expression - but the gay couple argue it was a case of unlawful discrimination based on sexual orientation.
“One thing we are trying to figure out in these cases is what counts as discrimination,” said John Corvino, a professor of philosophy at Wayne State University and co-author of “Debating Religious Liberty and Discrimination.”
He said a key difference is that in Northern Ireland, Ashers Baking Co. was refusing to make a certain design so would not be guilty of discrimination under U.S. law because it was a “design-based refusal,” not a “user-based refusal”. “We wouldn’t expect a baker to make a swastika-shaped cake ... they should be able to refuse designs,” he said.
In April, Britain’s Supreme Court will consider whether the Christian-run bakery found guilty in 2015 of unlawful discrimination can refuse to make a cake backing gay rights. Northern Ireland is the only part of the United Kingdom where same-sex marriage is not allowed.
In the United States, sexual orientation is not protected by law in all 50 states but is protected on a state-by-state basis.
“In 29 states in America, you can be fired from your job for being LGBTQ,” Ellis said.
At Human Rights Watch, Boris Dittrich, advocacy director for its Lesbian, Gay, Bisexual and Transgender Rights Program based in Berlin, agreed the two cases mark a dangerous slippery slope.
“Where do you draw the line?” he said. “Could a baker also invoke the freedom of his religion to refuse to put a slogan on a cake in support of a mixed race relationship?”
But Sarah Warbelow, legal director at Human Rights Campaign, cautioned against drawing comparisons as both countries have very different legal systems, constitutions and histories.
“While we can look to international law as a thought process and an assessment of how other countries are handling a variety of issues, it’s dangerous to compare a potential legal outcome in the United States to a case from a foreign country,” she said.
Jennifer Pizer, director of law and policy at Lambda Legal, an advocacy group, said a decision in favor of the U.S. baker would “blow an enormous hole” in civil rights laws.
"If the civil rights laws can be evaded that easily, then they really become meaningless in many circumstances and that takes us down a very dangerous and hurtful path," she said. (Reporting by Ellen Wulfhorst, Editing by Belinda Goldsmith; Please credit the Thomson Reuters Foundation, the charitable arm of Thomson Reuters, that covers humanitarian news, women's rights, trafficking, property rights, climate change and resilience. Visit news.trust.org)