The Supreme Court has ruled that it was not discriminatory for a Belfast bakery run by Christians to refuse to make a cake iced with a gay rights slogan, as the refusal was based on the message and not on any particular person.
In 2014, Gareth Lee, a gay man who volunteers with an organisation in support of the LGBT community in Belfast, visited a branch of family-run bakery Ashers and ordered a cake iced with a picture of Sesame Street characters Bert and Ernie with the slogan “Support Gay Marriage”.
The order was initially accepted by the bakery but Mr Lee was later contacted by the firm’s head office to inform him that they could not in conscience produce a cake with the slogan he requested. The reason for this was that the bakery was run by a family of Evangelical Christians. Although not publicised, the name of the bakery itself derived from the Bible and the company’s owners sought to run it in accordance with their beliefs insofar as possible.
The order was cancelled, Mr Lee received a full refund and was able to purchase the cake elsewhere. This may have marked the end of the story had he not contacted the Equality Commission for Northern Ireland (ECNI) to raise a complaint.
The ECNI agreed to support Mr Lee in raising an action against Ashers; his claim being that he had been discriminated against on the grounds of his sexual orientation, religious belief and/or political opinion.
The case was first heard in the County Court in 2015 where the Presiding District Judge found that Mr Lee had been discriminated against on all three grounds and awarded him the sum of £500 in damages. Following an unsuccessful appeal to the Northern Ireland Court of Appeal, the bakery applied to the Supreme Court for consideration of the case.
The five-bench Supreme Court have now overturned the decisions of the lower courts by unanimously agreeing that there was no discrimination against Mr Lee on the grounds of his sexual orientation or political opinion.
With regards to discrimination on the grounds of sexual orientation, the Court accepted the bakery’s argument that their refusal was based on their opposition to the message and not based on Mr Lee’s sexuality or his potential association with the homosexual community. In essence, the objection was to the message, not the messenger.
In support of this, the bakery were able to show that they had accepted orders from Mr Lee in the past and argued that they would do so again. They successfully convinced the Court that had a heterosexual customer asked for the same type of cake, they would have also refused their order. Fundamentally, discrimination is treating people differently and given that any customer regardless of sexual orientation would have been treated in the same way, this could not be a case of discrimination.
The Court further considered whether the message on the cake was “indissociable” from the protected characteristic of sexual orientation. In other words, was belief in gay marriage so intrinsically linked with homosexuality that discrimination against the message amounted to discrimination against Mr Lee? The Court found that this was not the case as people of all sexual orientations can and do support gay marriage. It was therefore not possible to say that discrimination against the message was discrimination against Mr Lee.
Considering discrimination on the grounds of religious belief or political opinion, the Court firstly had to ask whether support for gay marriage amounted to a political opinion and, further, whether the act of requesting this slogan could be considered proxy for supporting gay marriage. The Court found that support for gay marriage was capable of being considered a political opinion and that Mr Lee could be considered as holding this opinion. It was therefore possible that he could have been discriminated against on account of his political opinion.
The Court was now faced with the conflict between the religious opinion of the bakery and the political opinion of Mr Lee. In considering this, they relied heavily on the rights relating to religion and freedom of expression under Articles 9 and 10 of the European Convention on Human Rights.
Article 9 confers a right to freedom of religion and Article 10 includes the freedom not to be obliged to hold or to manifest beliefs that one does not hold. Whilst the right to freedom of religion can be limited in a democratic society in pursuit of a legitimate aim, the circumstances in this case were not capable of justifying an infringement on the Article 9 and 10 rights of Ashers. Accordingly, the bakery were entitled to refuse the order and this did not amount to discriminatory treatment of Mr Lee.
The case has attracted a significant amount of attention and controversy in its journey through the courts and this final judgment is no exception. Whilst some will regard the ruling as a victory for freedom of expression, others will be concerned about the ramifications for the operation of equality law in the U.K.
It is crucial for service providers to appreciate that this case does not create a carte blanche right to refuse services where there is a conflict between the opinions and rights of the service provider and client or customer.
The decision is extremely nuanced and, whilst many will welcome a unanimous Supreme Court judgment, there are still a number of questions surrounding the extent to which service providers can rely on the idea that they are objecting to the message, not the messenger. Given this uncertainty, it seems likely that more cases of this nature will arise in the future and it is hoped that further clarity may be achieved.
In the interim, it is advisable that service providers mitigate their exposure to any potential claims by ensuring that they have a clear Equality Policy in place within their company. Ensuring staff are trained in matters of equality and diversity should go some way in ensuring that, where conflicts arise, they can be dealt with sensitively and effectively.
Miller Samuel Hill Brown’s team of Employment experts can assist with a broad range of employment issues, including matters relating to discrimination. Please get in touch with a member of our team today.