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14 December 2018

136: Supreme Court ruling: a bakery’s refusal to make a cake supporting gay marriage was not discrimination

The Supreme Court has ruled that a Northern Irish bakery and its Christian owners did not discriminate on the grounds of sexual orientation or political opinion when they refused to bake a cake iced with the words ‘Support Gay Marriage’ for a gay customer, Mr Lee (Lee v Ashers Baking Company Limited and others).

The owners of Ashers Bakery, Mr and Mrs McArthur, refused to supply the cake to Mr Lee because of their Christian belief that marriage must be between a man and a woman. Mr Lee brought a claim for direct discrimination on grounds of sexual orientation under the law relating to discrimination in the provision of goods, facilities and services.

The County Court held that the Mr and Mrs McArthur had refused to bake the cake because they opposed same-sex marriage due to their religious beliefs, not because of Mr Lee’s actual or perceived sexual orientation. However, it found that support for gay marriage was indissociable from sexual orientation and therefore upheld his claim for direct discrimination. The Northern Ireland Court of Appeal held that this reasoning was flawed, because people of any sexual orientation can and do support gay marriage, but upheld Mr Lee’s claim for different reasons. It ruled that this was a case of associative discrimination based on Mr Lee’s association with the gay and bisexual community.

The Supreme Court has now allowed an appeal by the Bakery and its owners, finding that there was no direct discrimination against Mr Lee on grounds of his own sexual orientation or his association with the gay community.

The Supreme Court noted that Mr and Mrs McArthur refused to supply the cake because of their opposition to same-sex marriage, based on their genuinely held religious beliefs. Crucially, they would have supplied Mr Lee with a cake without the words ‘Support Gay Marriage’, and they would have refused to supply a cake with that message to a heterosexual customer. In other words, their objection was to the message, not the messenger. They had not therefore discriminated against Mr Lee on grounds of his sexual orientation.  The Supreme Court also confirmed that because anyone can support gay marriage, it cannot be said to be indissociable from sexual orientation.

In relation to the claim of associative discrimination, the Supreme Court held that the Court of Appeal was wrong to say that Mr Lee’s association with the gay and bisexual community was relevant. There had been no finding that the reason for refusing to supply the cake was that Mr Lee was thought to associate with gay people. Although the Supreme Court was clear that this was not a case of associative discrimination, it did not set out a definitive test for the closeness of the association that would justify a finding of discrimination, leaving this area of law somewhat unclear.

Mr Lee also brought a claim of discrimination based on political opinion, which is only possible in Northern Ireland, not the rest of the UK. Again, the Supreme Court noted that the Bakery’s objection was to the message on the cake, not to Mr Lee’s political opinion. It was also necessary to consider the impact of Mr and Mrs McArthur’s rights to freedom of religion and freedom of expression under the European Convention on Human Rights. The Supreme Court ruled that the discrimination legislation should not be read in such a way that service providers should be compelled to express a message with which they disagreed, unless there was justification for doing so, which was not the case here.

The Supreme Court’s decision was based largely on the finding that the Bakery’s objection was to the message rather than to Mr Lee himself, but the fact that his claim succeeded in the lower courts illustrates the difficulties of applying discrimination law in this context. Mr Lee has indicated that he may continue his claim in the European Court of Human Rights.

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