Legal: Don’t shoot the messenger

John Mitchell, a partner at law firm Blake Morgan, looks at the background to the ruling in Northern Ireland’s so-called ‘gay cake’ case.

Last month, after a high-profile dispute that began in 2014, the Supreme Court overruled the decision of the Northern Irish Court of Appeal and held that it was not directly discriminatory for a Christian baker to refuse to bake a cake that contained a message supporting gay marriage (Lee v Ashers Baking Company Limited).

Lee, a gay man, had ordered a cake from Ashers bearing the slogan ‘Support Gay Marriage’. Ashers, a family bakery in Northern Ireland with Christian owners, cancelled Lee’s order and gave him a refund as they were opposed to same-sex marriage. As a result, Lee brought direct discrimination claims on the grounds of sexual orientation and religious belief or political opinion.

The Equality Act (Sexual Orientation) Regulations (Northern Ireland) 2006 prohibit discrimination based on sexual orientation in relation to the provision of goods, facilities and services. The Fair Employment and Treatment (Northern Ireland) Order 1998 prohibits discrimination on grounds of religious belief or political opinion in relation to the provision of goods, facilities and services. Both these provisions are very similar to those under the UK’s Equality Act 2010, which does not apply in Northern Ireland. 

Lee’s claim succeeded in the county court where he was awarded damages of £500. Ashers lost its appeal in the NI Court of Appeal, which held that the case was associative discrimination as the bakery would not have objected to a cake saying ‘Support heterosexual marriage’, and the benefit of the message of the cake could only apply to gay or bisexual people.

However, the Supreme Court unanimously overturned the decision and held that the bakery had not discriminated against Lee.

Supreme Court president Lady Hale noted that the bakery would have supplied Lee with a cake without that message, and that they would have refused to supply a cake with the same message to a heterosexual customer. The objection was to the message, not the messenger. People of all sexual orientations can support gay marriage, and being a supporter was not a proxy for any particular sexual orientation.

There was no finding that the reason for refusing to supply the cake was that Lee was thought to associate with gay people, and the Supreme Court noted that the message on the cake could have wider benefit than just gay or bisexual people.

Lady Hale added: “It is deeply humiliating, and an affront to human dignity, to deny someone a service because of that person’s race, gender, disability, sexual orientation, religion or belief. But that is not what happened in this case”.

With regards to discrimination on grounds of religious belief or political opinion, the Supreme Court considered compatibility with the European Convention on Human Rights, particularly, Article 9, Freedom of Religion and Belief, and Article 10, Freedom of Expression. Although Ashers could not refuse to provide Lee with a cake because he was gay or supported gay marriage, there was no justification requiring Ashers to supply a cake bearing a message with which they profoundly disagreed.

This court’s decision will be welcomed by many service providers, but creates some uncertainty surrounding the extent to which a service provider can rely on the idea that they are objecting to the message rather than the messenger.

An example of a case that fell the other side of the line was the Supreme Court decision in Bull v Hall (2013) where it was held that a homosexual couple had suffered direct discrimination when they were refused a room by Christian hotel owners whose religious beliefs meant that they were only prepared to let double rooms to heterosexual married couples.

LGBT campaign group Stonewall has released a statement following the Ashers’ decision, noting: “This is a backward step for equality which needs to be urgently addressed.”

Many other organisations, however, have welcomed the decision as a victory for freedom of expression.

The reported cost of the ‘gay cake’ case is around £450,000 but further, costly and high-profile litigation in other similar cases seems inevitable.

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