Have your cake and eat it
Labour & European Law Review Weekly Issue 498 30 November 2016
Although same sex marriage in legal in Great Britain, it is still banned in Northern Ireland (NI). In Lee v McArthur and ors, however, the NI Court of Appeal held that it was direct discrimination by association for the Christian directors of a business to refuse to customize a cake carrying a message in support of same sex marriage.
Mr Lee, a gay man, ordered a customised cake from Ashers Bakery with the caption “Support Gay Marriage” on it. A few days after placing his order, one of the directors of the bakery, Karen McArthur, telephoned him to cancel the order, explaining that the bakery was a “Christian business” and she and her husband believed that gay marriage was sinful.
Mr Lee brought a claim for direct discrimination contrary to the provisions of the Equality Act (Sexual Orientation) Regulations (NI) 2006 and on the grounds of religious and political belief contrary to the Fair Employment and Treatment (NI) Order 1998.
Decision of Belfast County Court
The judge held that the McArthurs (and therefore the bakery) had directly discriminated against Mr Lee because he did not share their belief that marriage should be confined to heterosexuals.
The reason that the McArthurs had treated Mr Lee less favourably was because they disagreed with his religious belief and political opinion that the law should be changed to allow gay marriage. By refusing to provide Mr Lee with the service he wanted, the McArthurs had directly discriminated against him.
As for the human rights of the McArthurs, the judge held that the relevant anti-discrimination provisions were necessary in a democratic society and were a proportionate means of achieving the legitimate aim of protecting Mr Lee’s rights and freedoms. The McArthurs were still entitled to their beliefs but these had to be manifested in accordance with the law.
Arguments on appeal
The McArthurs argued that, in order to establish direct discrimination, it was necessary to show they had violated a protected personal characteristic which could not be established by a difference in treatment in respect of a message on a cake. In addition, their right to freedom of expression had been infringed under Article 10 of the Human Rights Act 1998.
Decision of NI Court of Appeal
The Court of Appeal disagreed, however, holding that the benefit from the message on the cake could only accrue to gay or bisexual people. The McArthurs would not have objected to a cake carrying the message “Support Heterosexual Marriage” or indeed “Support Marriage”. It was the use of the word “Gay” in the context of the message which prevented the order from being fulfilled.
The reason that the order was cancelled therefore was because the McArthurs would not provide a cake with a message supporting a right to marry for those of a particular sexual orientation. This was a case of association with the gay and bisexual community and the protected personal characteristic was the sexual orientation of that community. This was, therefore, direct discrimination.
As for their human rights, the Court agreed with the county court judge that the McArthurs were entitled to continue to hold their genuine and deeply held religious beliefs and to manifest them. However, they could only do so in accordance with the law, which included not manifesting them in the commercial sphere if, by doing so, they violated the rights of others. By fulfilling the order, they were not being asked to support or endorse gay marriage any more than decorating a cake portraying witches on a Halloween cake indicated that they supported witchcraft.
The fact that a person may sincerely and genuinely hold certain beliefs would not justify that person discriminating against another on the basis of a protected characteristic.