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31 October 2018

Ashers Bakery: was it the message or the messenger?

In a recent case concerning the refusal to accept an order for a cake bearing the words “Support Gay Marriage” by a bakery because of its owner’s Christian belief, the Supreme Court held that such refusal did not amount to direct discrimination on grounds of sexual orientation, religious belief or political opinion.

An order for a customised cake was placed by a gay man with Ashers Bakery in Belfast. The cake was for an event organised by QueerSpace, an organisation for the lesbian, gay, bisexual and transgender community in Northern Ireland.

The owners of the bakery subsequently cancelled the order and refunded the customer because they were opposed to same-sex marriage based on the Christian belief that marriage must be between a man and a woman.

The customer brought discrimination proceedings in the county court against the bakery where his claim succeeded. The bakery appealed the decision to the County Court where the finding of discrimination was upheld. An appeal to the Supreme Court was subsequently lodged.

When determining the case, the Supreme Court observed that the bakery’s refusal was not because of the customer’s sexual orientation, but because of the message. In her judgement, Lady Hale commented that just because the reason for the less favourable treatment towards the customer had something to do with his sexual orientation, it did not mean that the less favourable treatment was on grounds of sexual orientation. Lady Hale found that a closer connection was required for a finding of discrimination on grounds of sexual orientation.

The Supreme Court concluded that there had been no discrimination on grounds of sexual orientation because Ashers Bakery would have refused to supply a cake with the same message to a heterosexual customer.

This case causes uncertainty over the circumstances when a service provider can argue that they are objecting to “the message, not the messenger”. It would however seem to indicate that the presence of particular features identifying the product being sold as being connected with a particular protected characteristic is vital in a discrimination claim. If the cake in this case did not have any particular features identifying it as being connected with same-sex individuals, the bakers would not have had a defence as they would have baked the same cake for any heterosexual individual.

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