UK: "Gay Marriage" Cake: Refusal To Supply Was Not Discriminatory

In Lee v. Ashers Baking Company Limited and Others, the Supreme Court considered whether a bakery's refusal to supply a cake with a slogan supporting gay marriage was discriminatory on the grounds of sexual orientation or political opinion. It held that there had been no unlawful discrimination, overturning the decisions of the courts below.

Background

The background to this case has received a lot of publicity. Mr Lee, a gay man, volunteers for a charity called QueerSpace, which supports the LGBT community in Belfast. It supports the campaign in Northern Ireland to allow same-sex couples to marry, although it is not itself a campaigning organisation.

Mr Lee was invited to attend a private event organised by QueerSpace to mark the end of Northern Ireland's anti-homophobia week and reinforce the political momentum towards same-sex marriage. He wanted to take a cake to the party.

He had bought cakes before from a shop run by Ashers Baking Company Limited. Ashers is a business owned and managed by the McArthur family, who are Christians. The company's name has a biblical origin and they try to run the business in accordance with their beliefs, although they do not advertise that fact.

Mr Lee placed an order with Ashers for a cake to be decorated with a picture of the muppets Bert and Ernie, the QueerSpace logo and the slogan "Support Gay Marriage". Whilst the order was initially accepted, and the cake paid for, the McArthurs reflected on the order and concluded that they could not in conscience make a cake with that slogan. They therefore called Mr Lee to explain that they could not fulfil the order as theirs was a Christian business and they could not supply a cake with the requested slogan. They apologised to Mr Lee and arranged a refund.

Mr Lee brought claims of discrimination on the grounds of sexual orientation and political opinion in the Northern Ireland county court against Ashers and its owners, the McArthurs. His claims were upheld by the district judge and the Northern Ireland Court of Appeal dismissed Ashers' appeal, albeit on different grounds.

Supreme Court decision

Ashers then appealed to the Supreme Court, which gave judgment on 10 October 2018. The Supreme Court upheld Ashers' appeal, finding that the McArthurs (and hence the business) had not discriminated against Mr Lee on the ground of his sexual orientation. The court also allowed the appeal against the finding of discrimination on the grounds of political opinion.

Mr Lee's sexual orientation claim was based on alleged "associative" discrimination, namely that the reason for cancelling the order was that he was likely to associate with the gay community. However, Lady Hale (who gave the leading judgment) found there was no evidence that Ashers had discriminated on that or any other ground in the past. They employed and served gay people and did not discriminate against them because of their sexual orientation. Contrary to the findings of the district judge, Lady Hale believed that Mr Lee's sexual orientation could be dissociated from his support for gay marriage. People of all sexual orientations can and do support gay marriage.

The crucial point for the Supreme Court was the fact that the bakery had not cancelled the order because of Mr Lee's sexual orientation but because of their religious objection to the message to be printed on the cake in favour of gay marriage.

When it came to the claim of discrimination on the grounds of political opinion, Lady Hale found that there was a much closer association between Mr Lee's sexual orientation and the message he wished to promote and a greater argument that the two were "indissociable". However, Lady Hale relied on the McArthurs' rights under the European Convention on Human Rights and the Supreme Court's conclusion in previous cases that no one should be forced to have or express a political opinion in which they do not believe. As a result, the McArthurs (and by extension Ashers) could not be forced to produce a cake bearing a message with which they profoundly disagreed.

Lessons for employers

Whilst the case concerns the supply of goods and services, there are lessons to be learned for employers. The Supreme Court judgment expressly emphasised that the situation was not comparable to someone being refused a job because of their political opinion or religious belief. It is a clear reminder of the tensions that exist where different beliefs or opinions conflict. It is wise to tread with caution in these situations and take advice before acting.

It should also be noted that, unlike the rest of the UK, only the law in Northern Ireland prohibits discrimination on the grounds of political opinion, as distinct from religion or religious or philosophical belief.

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