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Conclusion of ‘Gay Cake’ case – Supreme Court finds bakers did not discriminate

MH
BY Miranda Hughes
Employment Law & HR

The ‘Gay cake’ case has now seen its conclusion after four and a half years and legal costs of around £450,000. The Supreme Court has found in favour of a Christian family-owned baking company confirming that it did not discriminate against a customer by refusing to bake a cake with a slogan supporting gay marriage.

Background

Back in 2014, Mr Lee, a gay rights activist, ordered a cake from Ashers bakery featuring Bert and Ernie from Sesame Street with a message stating ‘Support Gay Marriage’. The order, which was initially accepted in a Belfast city centre store, was later rejected by head office. Ashers argued that the same-sex marriage slogan was inconsistent with their religious beliefs.  Owner Daniel McArthur stated that the bakery would “happily serve everyone but we cannot promote a cause that goes against what the Bible says about marriage.”

Backed by the Northern Irish Equality Commission, Mr Lee brought a case before the Belfast County Court in May 2015. The customer complained that this refusal was unlawful discrimination on the grounds of sexual orientation, religious belief and political opinion. The county court held that that the bakery unlawfully discriminated against Mr Lee when it refused to accept this order. Further that the bakery could not rely on their sincerely held religious belief as a defence to this refusal. The bakery was ordered to pay £500 in compensation.

However, the story did not end there. The bakery appealed to the Northern Irish Court of Appeal and the case was heard a year later. The Court of Appeal upheld the decision of the County Court stating that the reason for the refusal was due to the message on the cake which referred to gay marriage. Refusing the order therefore amounted to direct discrimination.

Ashers took this case all the way to the Supreme Court, with five Supreme Court Justices travelling to Belfast in May of this year to hear the case. The Supreme Court heard from Daniel McArthur’s barrister that he and his wife had been ‘penalised by the state…for failing…to create and provide a product bearing an explicit slogan “Support Gay Marriage” to which they have a genuine objection in conscience.”

Supreme Court Decision

Reaching a unanimous decision, the five justices held that the bakery did not refuse to fulfil this order because of Mr Lee’s sexual orientation as they would have refused to make the cake for any customer, irrespective of their sexual orientation. They held that the bakery’s objection was to the message on the cake and not the personal characteristics of Mr Lee. Subsequently, there was no discrimination on grounds of sexual orientation of Mr Lee.

The president of the Supreme Court, Lady Hale, went onto address the matter of discrimination based on religious belief and political opinion. With regards to the religious belief, it was submitted on behalf of Ashers that that the purpose of discrimination law is to protect people from being treated less favourably because of that characteristic and not because of a protected characteristic of the alleged discriminator. Lady Hale confirmed that the less favourable treatment must be on the grounds of religious belief or political opinion of someone other than the person doling out that treatment. Mr Lee’s claim for discrimination on the grounds of religious belief therefore failed.

In turning her attentions to discrimination on grounds of political opinion it was necessary to consider the impact of producing this case on the McArthurs’ rights under Article 9 of the European Convention on Human Rights which protects the right to freedom of thought. This includes the freedom to manifest religion or belief in worship, teaching, practice and observance. It has been held previously that obliging a person to manifest a belief which he does not hold is a limitation on these rights. Lady Hale went on to say that the freedom of a person not to express an opinion they do not hold is also protected by Article 10 which provides that everyone has the right to freedom of expression. The Supreme Court held that nobody should be forced to have or express a political opinion in which they do not believe. They acknowledged that the Convention rights must always be read within the confines of discrimination legislation. However, this meant that the bakery could not refuse to provide baked goods to Mr Lee as a gay man but they could refuse to express this slogan.

In reaching this decision, they reviewed the District Judge’s view that the bakery was not required to promote and support a campaign for a change in the law to enable same sex marriage. The Court of Appeal had also stated that ‘the fact a baker provides a cake for a particular team or portrays witches on a Halloween cake does not indicate any support for either’. However, Lady Hale stated that what matters is that by being required to produce the cake, they were being required to express a message with which they deeply disagreed.

Lessons to Learn

Regardless of whether you agree with the decision in this case, a clear warning has been sent out to employers and businesses which provide goods and services of the need to tread carefully in turning down any business based on objections to sexual orientation, political or religious beliefs.  There was an important distinction here between refusing to produce a cake conveying a particular message, for any customer who wants that cake, and refusing to produce a cake for a particular customer based on their characteristics. The latter is a clear act of discrimination whilst the former could still be, depending on the balance of the convention rights and discrimination law.

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