12 October 2018 #Employment
The Supreme Court has handed down its decision in the ‘gay cake’ case today, finding that a Christian Bakery had not acted unlawfully in refusing to provide a cake endorsing gay marriage.
We have previously reported on the case of Lee v Ashers Baking Company and Others, both at the County Court and at the Northern Ireland Court of Appeal. In summary, Ashers Baking is owned by a Christian couple who oppose same-sex marriage as being contrary to their religious beliefs. The Claimant, a gay man who volunteers for an organisation which supports gay marriage, ordered a cake from the bakery with a design which included the headline ‘Support Gay Marriage’. The owners refused to fulfil the order due to their religious beliefs.
The Claimant succeeded in his claim for direct discrimination both at first instance and at the Northern Ireland Court of Appeal.
However, today, the Supreme Court allowed the appeal, finding in favour of the bakery. The Court noted that the bakery did not refuse to fulfil the Claimant’s order on the basis of his actual or perceived sexual orientation. Neither the owners nor their staff were familiar with the Claimant or with his sexual orientation. Further, the bakery both employed and served gay people and treated them in a non-discriminatory way. It was therefore not straightforward direct discrimination.
Therefore, the court found that this case concerned associative direct discrimination only. However, it noted that the reason for refusing to supply the cake was not that the Claimant was thought to associate with gay people. Their objection was to the slogan on the cake, endorsing gay marriage. They would also have refused to supply such a cake to a hetero-sexual customer. In a nutshell, their objection was to the message, not to the messenger.
The Supreme Court also allowed the appeal on the religious belief or political opinion ground, relying upon Articles 9 and 10 of the European Convention on Human Rights, which include the right not to be obliged to manifest a belief that one does not hold. The legislation should not be construed to compel the bakery to supply a cake iced with a message with which they fundamentally disagreed, unless justification was shown, and it had not been in this case.
In summary, in the Court’s words: There is a clear distinction between refusing to produce a cake conveying a particular message, for any customer who wants such a cake, and refusing to produce a cake for the particular customer who wants it because of that customer’s characteristics…the bakery would have refused to supply this particular cake to anyone, whatever their personal characteristics. So, there was no discrimination on grounds of sexual orientation. If and to the extent that there was discrimination on grounds of political opinion, no justification has been shown for the compelled speech which would be entailed for imposing civil liability for refusing to fulfil the order’.
The findings of the various courts in this case continues to demonstrate the tension between the right to free speech, thought, conscience and religion versus the prevention of discrimination.