UK Supreme Court rules that refusal to bake cake with slogan supporting gay marriage was not discrimination (Northern Ireland)

Summary

In a landmark decision the UK Supreme Court has ruled that it was not direct discrimination for a Christian baker to refuse, on religious grounds, a request by Mr Lee, a gay man, to bake a cake featuring Bert and Ernie of Sesame Street, with the message 'Support Gay Marriage'. The Court decided that to bake a cake with a message that the bakers intrinsically disagreed with would not justify a breach the European Convention of Human Rights, which prevents an individual being made to express a political opinion they do not believe. Lee v Ashers Baking Company Ltd and others [2018] UKSC 49.

Facts

The owners of Ashers Bakery, the McArthurs, are Christians who hold the religious beliefs that: the only form of full sexual expression acceptable to God is between a man and woman within marriage and the only form of marriage consistent with Biblical teaching is between a man and woman. Mr Lee, a gay man in Northern Ireland, requested Ashers Bakery in Belfast to bake a cake using their “Build-a-Cake” service. This allows customers to request images or inscriptions to be iced on to a cake. The pictures he requested featured Bert and Ernie of Sesame Street, with the message ‘Support Gay Marriage’ for an event hosted by an LGBT organisation. Mrs McArthur took the order but raised no objection at the time as she wished to consider how to explain her objection to making the cake. She phoned Mr Lee explaining that because they were a Christian business they could not print the slogan requested. She apologised and he was later given a full refund and the image was returned. He brought about claims for direct discrimination, indirect discrimination and associative discrimination.

Outcome

The Supreme Court considered the direct discrimination claim but did not believe the refusal was because of Mr Lee’s sexual orientation. Nor, considering associative direct discrimination, they were satisfied the refusal was because Mr Lee was likely to associate with the gay community. That the message had something to do with the sexual orientation of some people was not sufficient to make out the discrimination claim.

The previous Courts did not initially find that the bakery refused to fulfil the order because of Mr Lee’s actual or perceived sexual orientation. It was found that the order was cancelled because the McArthurs opposed the message ‘support gay marriage’ due to their genuinely held beliefs. They took no issue with the messenger, they would have refused a hetero-sexual person for the same reason, and they would have supplied a cake without the specific message to Mr Lee.

Substantial emphasis was placed on rights of religion and expression under the European Convention on Human Rights, which prevents an individual being made to express a political opinion they do not believe. To breach those rights was not justified by an obligation to supply a cake iced with a message with which the bakers intrinsically disagreed.

Implication for Employers

The progression of this case (through the Northern Irish court system) has been widely followed in the media. Where an employer is supplying goods or services, caution needs to be taken if the decision is made to refuse offering a service. It is important to factor that the slogan in the message was political and the McArthurs genuine beliefs regarded gay marriage as a sin. This case is an anomaly in a wide range of case law where claimants were successful in their claims for discrimination from refusal of a service. The outcome would have been very different if the initial Judge had decided that this conduct was associative discrimination and refusal surrounded Mr Lee’s sexual orientation. It will be interesting to see how this case will develop and whether it does correctly balance the two protected characteristics of religion and sexual orientation in equality law.

The law and practice referred to in this article or webinar has been paraphrased or summarised. It might not be up-to-date with changes in the law and we do not guarantee the accuracy of any information provided at the time of reading. It should not be construed or relied upon as legal advice in relation to a specific set of circumstances.

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