The recent Supreme Court decision in Lee v Ashers Baking Company Limited and others has generated a lot of discussion and public interest. In that case the Supreme Court found that the Christian owners of a bakery in Belfast had not discriminated against a gay customer when they refused to bake a cake for him with the slogan ‘Support Gay Marriage’.
The Law
In Northern Ireland the Equality Act (Sexual Orientation) Regulations (Northern Ireland) 2006 (the Regulations) prohibit discrimination based on sexual orientation in relation to the provision of goods, facilities and services. Similarly, in Great Britain the Equality Act 2010 says that it is unlawful for a service provider to discriminate against a person requiring (or seeking to obtain or use) a service by not providing that person with the service. As a reminder, under the Equality Act you directly discriminate against someone with a protected characteristic when you treat them less favourably then someone without that characteristic.
The Cake
Mr Lee was a gay man who wanted to buy a cake decorated with the words ‘Support Gay Marriage’ for a private event organised by QueerSpace (who represent the lesbian, gay, bisexual and transgender community in Northern Ireland). He placed an order with Ashers Bakery in Belfast. However, the owners of Ashers bakery were Christian and in accordance with their religious beliefs were opposed to same sex marriage. Accordingly, they decided to cancel Mr Lee’s order and provided him with a refund. Mr Lee issued a claim against the bakery for direct discrimination on grounds of sexual orientation under the Regulations. He also issued a claim for direct discrimination on grounds of his religious belief or political opinion under separate legislation specific only to Northern Ireland which is outside of the scope of this article.
The County Court found that the bakery had refused to bake the cake as a result of their religious beliefs and opposition to same sex marriage. The Court did not find that they had refused to bake the cake as a result of Mr Lee’s sexual orientation. The Court still upheld the claim for direct discrimination however because it considered that it was impossible to dissociate support for gay marriage from being gay.
The decision was then appealed to the Northern Ireland Court of Appeal who found that the County Court was wrong in some respects because many heterosexual people support gay marriage and some gay people actually oppose it. It still upheld the decision however but for different reasons. It found that this was a case of ‘associative discrimination’. Essentially, Mr Lee had an association with the gay and bisexual community and the protected characteristic was the sexual orientation of that community.
The bakery then appealed the decision in the Supreme Court.
The Supreme Court’s decision
The Supreme Court found that Mr Lee had not been discriminated against. The Court’s view was that just because the reason for less favourable treatment was connected with the sexual orientation of some people, it did not necessarily mean that the less favourable treatment was actually because of sexual orientation.
The Court found that the bakery did not refuse to bake the cake for Mr Lee as a result of his sexual orientation. Importantly, the bakery would still have baked a cake for him if it was not decorated with the words ‘support gay marriage’ and if a heterosexual customer had requested the same cake, they would have refused that order as well.
Put simply, the Court found that the reason for the bakery’s refusal was their religious objection to gay marriage and not Mr Lee’s sexual orientation. The Court also noted that the bakery employed and served gay people and there was no evidence to suggest that it treated its gay employees or gay customers any differently.
The Court also found that people of all sexual orientations supported gay marriage and therefore the Court of Appeal were wrong to find that support for same sex marriage was ‘indissociable’ from the sexual orientation of Mr Lee. The Court of Appeal had also been wrong to find that this was a case of associative discrimination because the reason for refusing to bake the cake was not that Mr Lee associated with gay people.
Food for thought?
At first glance the rationale for reaching this decision seems straightforward; the bakery was objecting to the message and not the customer. Others have commented that the position may not be so clear cut if, say, the bakery had refused to bake a wedding cake for a same sex marriage. In those circumstances the cake might not be decorated with a ‘support gay marriage’ slogan but it might, for example, bear the names of the couple in question (e.g. ‘Chris and Tim’) which would obviously make it clear that it was for a same sex wedding. In this instance would the bakery still be entitled to lawfully refuse to bake the cake based on their objection to the principle of same sex marriage as opposed to a slogan inviting support for it?
This case serves as a useful reminder that the Equality Act 2010 applies to spheres wider than discrimination in employment. If you require any advice on the Equality Act 2010 and its application to the provision of services to the public, or in an employment context, Jeremy Crook works in our disputes legal team. If you have any questions about the issues raised in this article or any others get in touch by telephone 01726 74433 or email enquiries@stephens-scown.co.uk