Although it is discriminatory to refuse to provide a person with a service because of their sexual orientation, the Supreme Court has held in Lee v Ashers Baking Company Ltd and ors that it is not discriminatory for the owners of a bakery to refuse to print a message on a cake in support of gay marriage.
At the beginning of May 2014, Mr Lee (a gay man who volunteers for QueerSpace an organisation for the LGBT community in Belfast) went into Ashers bakery shop in Belfast and placed an order for a cake iced with his own design and the headline “Support Gay Marriage”.
A few days later one of the owners, Mrs McArthur, telephoned Mr Lee and explained that because they were a Christian business, they could not print the slogan requested. The owners believed that the only form of marriage consistent with Biblical teaching (and therefore acceptable to God) was that between a man and a woman. She apologised to Mr Lee and gave him a full refund.
Mr Lee brought claims of direct discrimination on grounds of sexual orientation, religious belief or political opinion. Mr and Mrs McArthur argued that their rights to “freedom of thought, conscience and religion” under Article 9 as well as the right to freedom of expression under Article 10 of the European Convention on Human Rights had been violated.
The claim for direct discrimination on grounds of sexual orientation was brought under regulations 3 and 5(1) of the Equality Act (Sexual Orientation) Regulations 2006 which provides that it is unlawful to treat another person less favourably on grounds of sexual orientation in the provision of goods and services including refusing to provide them.
The Fair Employment and Treatment (Northern Ireland) Order 1998 provides protection from direct discrimination on the ground of religious belief or political opinion in the provision of good and services.
Decisions of lower courts
The district judge in the county court held that Mr Lee had been directly discriminated against on the grounds of sexual orientation and religious belief or political opinion. because support for same sex marriage was held to be “indissociable” from sexual orientation.
The Court of Appeal rejected the appeal and upheld the claim for direct sexual orientation discrimination on the basis that the reason the order for the cake was cancelled was the message on the cake which corresponded to those of a particular sexual orientation The Court made its decision on the basis that “this was a case of association with the gay and bisexual community and the protected personal characteristic was the sexual orientation of that community”. Under the Regulations a claimant does not have to bring a claim based on their own sexual orientation, they can bring a claim based on less favourable treatment because of another person’s sexual orientation. The Court appeared to find that the reason for refusing to supply the cake was that Mr Lee was likely to associate with the gay community of which the McArthurs disapproved. Having upheld the claim for sexual orientation discrimination it did not consider it necessary to find on religious belief or political opinion.
Decision of Supreme Court
The Supreme Court overturned the earlier decisions and found that the bakery did not discriminate against Mr Lee on the grounds of sexual orientation or on grounds of political opinion.
In relation to the claim for direct sexual orientation discrimination the Court held the refusal to bake the cake was because of the message and not the sexual orientation of those ordering the cake. In particular, the bakery would have refused to supply a cake with the same message to anyone, irrespective of their sexual orientation. The Court held that “Support for gay marriage is not a proxy for any particular sexual orientation” and that “In a nutshell, the objection was to the message not to any particular person or persons”.
In terms of an argument that this was a case of associative discrimination (whereby a person is treated less favourably because of the sexual orientation of another), the Court was of the view that less favourable treatment which has something to do with the sexual orientation of some people was not enough.
Moreover others in the wider community could benefit from the message. The Court found that gay marriage “could also accrue to the benefit of the children, the parents, the families and friends of gay people who wished to show their commitment to one another in marriage, as well as to the wider community who recognise the social benefits which such commitment can bring”. Therefore association with a message which benefitted others and not just the LGBT community was not enough to establish a claim of discrimination by association on grounds of sexual orientation.
As for his claim that the refusal to fulfil his order constituted discrimination on the ground of political opinion, the Supreme Court held that support for gay marriage amounts to a political opinion taking into account the case law interpreting the Fair Employment Order (for which there is no equivalent in the rest of the UK). Moreover the Court was of the view that there was a stronger association between the message on the cake and the political opinion of Mr Lee which could give rise to a claim of perceived discrimination (where someone is discriminated against because they are perceived to have a protected characteristic).
The Court therefore proceeded to consider the impact of a claim under the Fair Employment Order on the bakers’ human rights to freedom of thought, conscience and religion (article 9) and to freedom of expression (article 10) which included the right not to be obliged to hold or manifest beliefs that an individual does not hold. As such, they could not be required under Articles 9 and 10 of the Convention to supply a cake iced with a message with which they profoundly disagreed.
The case has generated, and will continue to generate, a lot of debate, but in our view the case does not undermine claims for associative discrimination. The real issue in this case was about balancing conflicting rights and specifically whether the bakers’ human rights could compel them to bake a cake with a message they disagreed with.