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The Gay Cake Case: Lee v Ashers Baking Company

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About The Author

Connor Griffith (Consulting Editor)

Connor is a law graduate from the University of Nottingham with a particular interest in intellectual property and corporate law. He is currently a trainee solicitor at a large national firm, sitting in the Real Estate department. Outside the law, he enjoys stand-up comedy and moaning about Brexit.

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© See-ming Lee

The single most instinctive evil is discrimination.

Rahul Bose

Religion has held a position of unparalleled importance throughout human history. For this reason, jurisdictions around the world have imbued individuals with rights and protections that permit them to follow any religion of their choosing. However, the teachings of these religions – formed, in some instances, thousands of years ago – often appear antiquated and intolerant in an increasingly liberal world. As such, concessions have had to be made where religions and societies collide.

A recurring example of this conflict has centred around same-sex marriage. In recent years, legislation permitting same-sex marriage has swept through many Western nations; in England and Wales, it was adopted via the Marriage (Same Sex Couples) Act 2013. This legislation triggered a clash between the right it granted same-sex couples and the traditional Christian belief that marriage should be reserved for a man and a woman.

This conflict came to a head in the highly publicised case of Lee v Ashers Baking Company Ltd [2018], the final decision of which was handed down by the Supreme Court on 10 October 2018. As this article examines, over the past four years, a £36.50 cake order quickly resulted in a legal battle between the LGBT+ community and religious groups, culminating in what has now become the ‘most expensive cake in UK history’.

Lee v Ashers Baking Company

The Facts

The appellants, Daniel and Amy McArthur (the As), have managed a family-run bakery business since 1992, consisting of six shops and 65 members of staff. Since 2004, the bakeries have been run through Ashers Baking Company Ltd. As devout Christians, the As believe that the only form of marriage consistent with Biblical teaching is that between a man and a woman. While the As have always sought to run Ashers in accordance with their Christian beliefs, this has never been an externally visible or prominent aspect of the company.

The claimant, Gareth Lee (L), is a gay man who volunteers with the Northern Irish LGBT community QueerSpace. In preparation for a Queerspace event to ‘mark the end of Northern Ireland anti-homophobia week and the political momentum towards same sex marriage’,  L visited Ashers in May 2014 and ordered a custom-made cake. The cake in question consisted of the words ‘Support Gay Marriage’ above an image of Sesame Street characters Bert and Ernie, alluding to the – since refuted – suspicion that the characters are a gay couple.

When placing the order, L had not known that Ashers was a Christian bakery; likewise, the As had not known L was a gay man. Despite initially accepting the order, Amy McArthur phoned L the next week to inform him that they would not be producing his custom cake as its message was contrary to their Christian beliefs. An apology and a full refund was given to L.

With the aid of the Equality Commission for Northern Ireland (ECNI), L claimed that the As had discriminated against him because of his political views and sexual orientation. Before DJ Brownlie in the County Court in Lee v Ashers Baking Co Ltd [2015] – as discussed previously by Rowan Clapp for Keep Calm Talk Law – and the Northern Ireland Court of Appeal in Lee v Ashers Baking Co Ltd [2016], L was successful.

The Supreme Court's Decision

Contrary to the lower courts, the Supreme Court in Lee v Ashers Baking Company Ltd [2018] concluded that the As were entitled to refuse to produce the cake. Giving the lead judgment, Lady Hale, with whom all other justices agreed, split her reasoning into three sections:

  1. Discrimination on the grounds of sexual orientation;
  2. Discrimination on the grounds of political opinion;
  3. The impact of the European Convention on Human Rights (ECHR) rights on these claims.

Discrimination on Grounds of Sexual Orientation

Regulation 5(1) of the Equality Act (Sexual Orientation) Regulations (Northern Ireland) 2006 (the SOR) states that:

It is unlawful for any person concerned with the provision… of goods, facilities or services to the public or a section of the public to discriminate against a person who seeks to obtain or use those goods, facilities or services – (a) by refusing or deliberately omitting to provide him with any of them.

Regulation 3(1)(a) of the SOR describes direct discrimination as where, ‘on the grounds of sexual orientation, A treats B less favourably than he treats or would treat other persons’. ‘Sexual orientation’ is then defined in Regulation 2(2) of the SOR as being a sexual orientation towards persons of the same sex, persons of the opposite sex, or persons of the same sex and the opposite sex.

As such, L relied on these provisions to allege that the As had discriminated against him because of his sexuality. However, in the view of the Supreme Court, this argument could not stand; L did not have his order refused because he was gay, but because of the message on the cake. As Lady Hale stated succinctly in Lee v Ashers Baking Company Ltd [2018]:

The objection was to the message, not the messenger.

Indeed, the As have confirmed that they would have rejected an order by a heterosexual customer with the same message. It was therefore incorrect to assert that L was discriminated against because of his sexuality. This conclusion was supported by the decision of Lord Neuberger’s in Islington Borough Council v Ladele [2009], in which he observed that it ‘cannot constitute direct discrimination to treat all employees in precisely the same way’.

Indissociability

DJ Brownlie in Lee v Ashers Baking Co Ltd [2015] had reached the same conclusion as the Supreme Court in Lee v Ashers Baking Company Ltd [2018] on the issue of direct discrimination. However, she still decided that discrimination had occurred: in her view, the fact that support for same-sex marriage was indissociable from sexual orientation meant that to discriminate against the former was to also discriminate against the latter.

Lady Hale refuted this finding in Lee v Ashers Baking Company Ltd [2018]: she noted that support for same-sex marriage was not a true proxy for sexual orientation. This seems correct – after all, individuals can support same-sex marriage no matter their own sexuality, and to conclude otherwise seems a dangerous presumption to make.

Associative Discrimination

Unlike DJ Brownlie, the Court of Appeal in Lee v Ashers Baking Co Ltd [2016] had reached its conclusion that discrimination had occurred on the grounds that there had been associative discrimination. In this respect, it held that because the As knew that L – regardless of his sexuality, which was at this point unknown – was likely to ‘associate with the gay and bisexual community’, their refusal to produce the cake resulted in discrimination by way of association.

The Supreme Court in Lee v Ashers Baking Company Ltd [2018] also rejected this line of reasoning, noting that – on the facts – there was nothing to suggest that the As refusal to supply the cake was that L was thought to associate with gay people. It was observed that the As had never demonstrated any objection to homosexuality as a concept – the bakery had both employed and served gay people without any hint of discrimination – but were instead simply opposed to gay marriage.

Discrimination on Grounds of Political Opinion

Article 28(1) and Article 3(1) of the Fair Employment and Treatment (Northern Ireland) Order 1998 (the FETO) mirror the wording of Regulation 5(1) of the SOR, prohibiting discrimination on the ‘ground of religious belief or political opinion’.

The Supreme Court in Lee v Ashers Baking Company Ltd [2018] rejected the proposition that the discrimination should be looked at through the lens of the As’ religious beliefs and political opinions; instead, the discrimination laws were designed to protect the characteristics of those like L who were allegedly discriminated against. Indeed, this argument aligned with the general rule articulated in R (E) v Governing Body of JFS [2009] that ‘the motive of the alleged discriminator is irrelevant’.

Therefore, the grounds on which L was discriminated must be based on his own characteristics. As L was not known to publicly hold any religious belief concerning same-sex marriage, his support for same sex marriage could only be considered a political opinion. Any argument of religious discrimination therefore fell away.

Political Opinion?

An authoritative definition of ‘political opinion’ was given by the Court of Appeal in McKay v Northern Ireland Public Service Alliance [1994] NI 103 as:

[A]n opinion relating to the policy of government and matters touching the government of the state.

Due to the repeated failed attempts in recent years for same sex marriage to become legalised in Northern Ireland, DJ Brownlie in Lee v Ashers Baking Co Ltd [2015] found that support for same-sex marriage constituted a political opinion for the purpose of Article 3(1) of the FETO. The Supreme Court in Lee v Ashers Baking Company Ltd [2018] agreed: it saw ‘no reason to doubt that support for gay marriage is indeed a political opinion for this purpose’. The Court of Appeal did not consider the matter, having ceased discussions after finding discrimination on ground of sexual orientation.

Indissociability Revisited

As with sexual orientation, the As' objection was not against L specifically, or those that he associated with, but with the pro same-sex marriage message. The Supreme Court accepted as fact that anyone attempting to purchase the same cake from the As would have been refused, regardless of whether they supported same sex marriage or not. Likewise, L’s attempts to purchase a different cake without a message supporting same sex marriage would undoubtedly have been accepted, despite his political views on same sex marriage.

However, a distinction exists between the political opinion issue and the sexual orientation issue: the fact that L was purchasing a cake with a pro-same sex marriage message was much greater of an indication that he supported same-sex marriage than that he was a homosexual. While it would not be a fair assumption that someone purchasing a cake with the message ‘Support Gay Marriage’ is themselves a homosexual, it would certainly be much fairer to assume that someone purchasing that cake supported same-sex marriage.

As such, the support for same-sex marriage was held to be indissociable from L’s own support for same-sex marriage, the former being a proxy for the latter. As such, a discrimination against L's political opinion was, also, a discrimination against L himself. However, in order to determine whether this discrimination was ‘unlawful’ under the FETO, the Supreme Court first had to consider the impact of the European Convention on Human Rights (ECHR) on the ability of the As to refuse to bake the cake. 

The As’ Religious Rights

Article 9(1) of the ECHR provides that:

Everyone has the right to freedom of thought, conscience and religion; this right includes freedom to change his religion or belief and freedom, either alone or in community with others and in private or public, to manifest his religion or belief, in worship, teaching, practice and observance.

However, while the freedom to hold religious beliefs is absolute, the freedom to manifest those beliefs is not. Indeed, Article 9(2) of the ECHR provides that such a right is subject:

[T]o such limitations as are prescribed by law and are necessary in a democratic society in the interests of public safety, for the protection of public order, health or morals, or for the protection of the rights and freedoms of others.

In addition, the European Court of Human Rights and the Privy Council – in Buscarini v San Marino [1999] and Commodore of the Royal Bahamas Defence Force v Laramore [2017] respectively – have made it clear that ‘obliging a person to manifest a belief which he does not hold’ is a limitation on their rights under Article 9(1) of the ECHR. Therefore, one has the freedom to hold or not to hold religious beliefs.

This is reiterated through Article 10 of the ECHR, which guarantees freedom of expression. As confirmed by the Supreme Court in RT (Zimbabwe) v Secretary of State for the Home Department [2012], Article 10 of the ECHR includes both the right to express an opinion and to not express an opinion. As Lord Dyson explained in that case:

Nobody should be forced to have or to express a political opinion which he does not believe.

As such, Lady Hale in Lee v Ashers Baking Company Ltd [2018] asserted that something analogous to the principles under American doctrine against ‘compelled speech’ – namely, that the First Amendment guarantees ‘both the right to speak freely and the right to refrain from speaking at all’ – clearly also apply under the ECHR.

DJ Brownlie in Lee v Ashers Baking Co Ltd [2015] and, seemingly, the Court of Appeal in in Lee v Ashers Baking Co Ltd [2016] did not find that fulfilling the cake order would require the As to ‘promote and support a campaign for a change in the law to enable same sex marriage’. As the Court of Appeal argued:

[T]he fact that a baker provides a cake for a particular team or portrays witches on a Halloween cake does not indicate any support for either.

However, Lady Hale in Lee v Ashers Baking Company Ltd [2018] disputed this argument, writing instead that the As had two primary concerns: promoting the campaign for same sex marriage, which they fundamentally opposed; and, becoming associated with the campaign for same sex marriage through the public knowledge that the As had produced that cake.

Ultimately, requiring the As to produce the cake would have required them to ‘express a message with which they deeply disagreed’. Lady Hale believed that the As were well within their rights to refuse to bake a cake with such a message, and thus no discrimination was found on grounds of political opinion.

Comment

The Supreme Court's judgment in Lee v Ashers Baking Company Ltd [2018] creates a clear distinction between refusing to serve someone because of that person’s identity or characteristics, and refusing to serve someone because of the message contained within the requested product. For this reason, the ruling of the Supreme Court, while societally significant, is likely to have rather limited application in the future. The judgment does not – as many people have wrongly assumed – mean that companies can simply refuse to serve certain customers based on their religion, race or political views. Such a ruling would of course be absurd and unacceptable.

However, a degree of uncertainty has undoubtedly arisen: where exactly is the line to be drawn between messages that may and may not be opposed? In the present case, the words ‘Support Gay Marriage’ could be refused because they explicitly espoused an ideology that the As’ religion rejected. In the same vein, could the As have rejected a design with, for example, the words ‘Happily Married’ above an image of two bridegrooms or brides? While this latter design does not directly propose supporting same sex marriage, it implicitly demonstrates approval of that same concept. Would a distinction be created between something that expressly and implicitly promotes supporting the same thing?

Support for Same-Sex Marriage?

In addition, throughout its time in the court system, the case raised the question of whether the As, by making the requested cake, would have been deemed to have ‘promoted’ same sex marriage. The argument that simply producing a product does not mean you support the political message of that product certainly has value; as Corey Stoughton, Acting Director of human rights organisation Liberty, asks:

Would we ever assume that a baker who ices “Happy 13th Birthday” on a cake has any feeling one way or the other about the pre-teen in question? … Of course not.

For this reason, DJ Brownlie in Lee v Ashers Baking Co Ltd [2015] was of the view, as Rowan Clapp has explained previously by Keep Calm Talk Law, that ‘the supplier and the message of a custom order product can be ideologically separated’.

However, it seems reasonably clear that the cake would be known to have come from the As: it likely would have come packaged in an Ashers box, and if L were asked who had made the cake, he would have told the inquisitor that it was from Ashers Baking Co Ltd. As such, the As would become known – at least to those at the QueerSpace event – as a company that produced cakes supporting same sex marriage. It is, of course, not too unreasonable for those at QueerSpace to then assume that this means that Ashers, as a company, supports this issue. But the law is clear: the As have a decisive right to not support such an issue due to their religious beliefs.

Companies in Democratic Societies

A further argument against the As in these proceedings is that the bakery is a business offering a service to customers. The company, in the ordinary course of business, would be tasked with producing a variety of products for a variety of customers. This is, of course, the role a company adopts when it offers a customer-facing service in a democratic society containing many religious beliefs and political opinions. Could it not, therefore, be argued that the As, having known the risk that they may be required to produce goods with messages contrary to their religion, should simply accept the matter and move on in the knowledge that production of the cake would not mean they themselves have changed their private views?

In this respect, a difficult balance must be achieved. At present, since the As were entitled to reject the request for the cake, the religious views of the As seem to have been held to be more important than L’s political support for same sex marriage. On its face, this may seem unacceptable – how can a supposedly impartial court value one ideology higher than another?

However, Ashers Baking Co Ltd operates as part of a free market; as such, L could – in response to the As’ conduct – simply ‘vote with his wallet’ and take his business elsewhere. Furthermore, L would have been perfectly entitled to attempt to organise a boycott of the As because of their – seemingly – homophobic business practice. To many, however, this will seem an imperfect solution.

Conclusion

The question of this case, therefore, is ultimately one of whether L should have to go to a different bakery, or whether he, as a customer, should be entitled to receive what he requests. The answer given to that question, of course, depends entirely on the role each of us believes that businesses should have in a democratic society. For this reason, it is highly unlikely that this is the last we will hear of Lee v Ashers Baking Company Ltd [2018].

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Tagged: Discrimination, Equality, Human Rights, LGBT, Religion, Supreme Court

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