Lee v Ashers Baking Company Ltd  UKSC 49
In a unanimous decision, the United Kingdom Supreme Court overturned the decision of the Northern Ireland Court of Appeal that found a bakery's refusal to supply a cake with the message "support gay marriage" to a gay man amounted to direct discrimination on the grounds of sexual orientation. The United Kingdom Supreme Court found that the bakery's refusal was centred on promoting the message and the bakers would have come to the same decision regardless of who requested it. In the Court's opinion it did not amount to discrimination on the grounds of sexual orientation, or religious beliefs or political opinion.
Mr and Mrs McArthur were Christians who ran a business called Ashers Baking Company (Ashers). Their business derived its name from biblical passage and was run in accordance with their faith. The McArthurs believed that the only form of sexual expression acceptable to God was between a man and a woman (and within the confines of marriage).
Mr Lee, who was a gay man, wanted to bring a cake to a private event supporting the end of Northern Ireland's anti-homophobia week and the political momentum towards same-sex marriage. He ordered a cake from Ashers with cartoon-like characters of "Bert and Ernie", the logo of the LGBT community organisation he volunteered at, and the message "Support Gay Marriage." Mrs McArthur initially accepted the order. However, the following weekend she telephoned Mr Lee and explained that she could not process the order because Ashers was a Christian business and she could not print the message.
Mr Lee complained to the Equality Commission for Northern Ireland and brought proceedings on the grounds of discrimination. The judge at first instance held that by refusing to complete the order, Ashers had directly discriminated against Mr Lee. On appeal, the Northern Ireland Court of Appeal concluded that there had been associative direct discrimination on the grounds of sexual orientation towards Mr Lee. That decision was appealed by the McArthurs and Ashers.
Discrimination for Sexual Orientation
Discrimination in providing goods to a person or persons because of their sexual orientation is prohibited in Northern Ireland by the Equity Act (Sexual Orientation) Regulations (Northern Ireland) 2006 (SI 2006/439). The judge at first instance found that Ashers refused to fulfil Mr Lee's order because they opposed same sex marriage on the basis that it was contrary to their religious beliefs. However, no finding was made that Mr Lee's order was cancelled because of his actual or perceived sexual orientation. The Supreme Court therefore held that the bakers' refusal did not amount to direct discrimination. Similarly, there was no finding by the primary judge that the cake was not provided because Mr Lee was thought to associate with gay people.
In grappling with the proposition that the bakers had engaged in associative discrimination on the grounds of sexual orientation, the Court noted that the cake's slogan would not simply be for the benefit of gay or bisexual people. Rather, the message could benefit the children, parents, friends and families of gay people wanting to support their commitment through marriage. It could also benefit the wider community who recognise the social benefits of that commitment. The McArthurs objection was held to be against the message and any association of sexual orientation to that message was not close enough to support a finding of discrimination.
Discrimination on Political Opinion
The Fair Employment and Treatment (Northern Ireland) Order 1998 (SI 1998/3162 (NI 21)) (FETO) prohibits discrimination for political opinion including by refusing or deliberately omitting to provide them with goods.
In reaffirming that the McArthurs' objection was not discrimination against Mr Lee but an objection to his message, the Court compared the situation to a Christian printing business being required to print leaflets promoting an atheist message. It held that Mr Lee had not been treated less favourably than anyone else. Indeed, the Court noted that Ashers were open to providing other baked goods to Mr Lee and had done so in the past. Consequently, it was held that Ashers and the McArthurs had not directly discriminated against Mr Lee because of his political opinion.
The Court did, however, consider that the message that Mr Lee wanted to promote could possibly be indissociable to his political opinion supporting gay marriage. Hence, the McArthurs' actions may have amounted to discrimination. The Court therefore went on to consider the effect of FETO against the McArthurs' rights under the European Convention on Human Rights (the Convention).
Balancing the McArthurs' rights to freedom of religion and expression against Mr Lee's right not to be discriminated against
Articles 9 and 10 of the Convention provide the rights to freedom of thought, conscience and religion as well as freedom of expression. Those rights have been held to extend to practising or not practising a religion. A person cannot be forced to manifest a belief or express a political opinion that they do not hold.
The Court considered that if the McArthurs were required to produce a cake, they would have been required to express a message that they did not believe in. That would have been inconsistent with their rights under the Convention. The McArthurs could not be obliged to supply a cake with the message requested by Mr Lee because it conflicted with their beliefs. It was irrelevant that the particular message related to sexual orientation. The Court held that FETO should not compel goods and services providers to express a message that they disagree with, unless there is sufficient justification.
In postscript, the Court compared its decision to the US Supreme Court's decision in Masterpiece Cakeshop v Colorado Civil Rights Commission, 548 U.S.; 138 S. Ct. 1719 (2018) (Masterpiece) where a Christian baker refused to supply a wedding cake to a gay couple based on his beliefs against same sex marriage. The Court in Masterpiece overturned a Commission's decision that the baker could not refuse to provide the cake on the grounds that the Commission was hostile to the baker's religious views and lacked neutrality. However, four of the seven Justices in Masterpiece considered that there was a distinction between objecting to a cake's message and refusing to supply a cake because the person requesting it was gay.
A clear tension exists between compelling suppliers to provide goods when they consider it to be contrary to their beliefs and ensuring that consumers are not discriminated against. Both of the decisions Lee v Ashers and Masterpiece highlight that the legal question is what the supplier is actually objecting to: the message or the person?
Where the objection is to the message, a supplier’s refusal to supply goods may not be discrimination as a person cannot be required to promote messages contrary to their views. However, if the objection relates to a consumer's actual or perceived sexual orientation or political opinion, a supplier's actions will be scrutinised more closely to determine whether it amounts to discrimination.
This distinction is problematic, however. LGBT rights advocates say that their message for equal rights is inherent to who they are as people, and how they are respected as people. To object to the message for equal rights, is to object to the LGBT person on the basis of their sexual orientation.
The full text of the decision can be found here.
Mayleah House is a Graduate at Ashurst.