In the case of Lee v Ashers Baking Company Ltd and Others, the Supreme Court has held that it was not discriminatory for a Christian bakery to refuse to supply a cake to the Claimant displaying a message in support of gay marriage.
In May 2018, the Claimant asked ABC Ltd to bake a cake with a picture of Bert and Ernie from Sesame Street along with the slogan “Support Gay Marriage”. Initially, the order was accepted, but the company later refused to bake the cake on the basis of the owners’ religious beliefs, as they were of Christian faith and disagreed with gay marriage.
The Claimant brought a discrimination claim in the Northern Irish Court on the grounds of sexual orientation and political belief. The Presiding District Judge, Judge Brownlie concluded that ABC Ltd refused to supply the cake because of the Claimant’s support for same-sex marriage, which she considered to be indissociable from sexual orientation. The claim succeeded at first instance and again at the Northern Ireland Court of Appeal (NICA) but the decisions have now been overruled by the Supreme Court.
In relation to the sexual orientation claim, the Supreme Court concluded that ABC Ltd had not refused to fulfil the order because of the Claimant’s sexual orientation. Rather, the objection was to the wording on the cake in support of gay marriage. Lady Hale, giving judgment, disagreed with the NICA’s view that the message was indissociable from the Claimant’s sexual orientation. She also noted that the issue of indissociability only comes into play in the context of direct discrimination where a criterion relied on as the reason for less favourable treatment is not the protected characteristic itself but instead is some proxy for it. So, in relation to the case of Bull v Hall (which was rereferred to in the NICA judgment), the practice of only letting rooms with double beds to married couples was directly discriminatory because at that time, marriage was indissociable from sexual orientation because only heterosexual individuals were legally permitted to marry. Contrarily, support for gay marriage is not a proxy for any particular sexual orientation, since anybody of any sexual orientation can support gay marriage.
The Supreme Court further found that the Claimant’s treatment did not constitute associative or perceived discrimination. It disagreed that ABC Ltd had discriminated on the grounds of association with the gay and bisexual community in the absence of supporting evidence and given the fact that the company employed and served gay people. The fact that the less favourable treatment was linked to the sexual orientation of some people was not enough for it to constitute discrimination, which would require a closer connection in order to establish that the treatment was ‘on the grounds of’ sexual orientation.
As for the political belief claim, the Supreme Court considered the rights relating to religion and expression under Articles 9 and 10 of the European Convention on Human Rights, which includes a right not to be obliged to hold or to manifest beliefs that one does not hold. The Court considered whether infringement of those rights could be justified in the particular circumstances, and concluded that it could not.
Lady Hale commented that “this conclusion is not in any way to diminish the need to protect gay people and people who support gay marriage from discrimination… 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.”
This decision highlights the importance of determining the true rationale behind a refusal to provide goods or services in a discrimination context and to conduct a careful analysis of the respective rights of each party.