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Yesterday, 10 October, the Supreme Court released its much-anticipated judgement in the Lee v Ashers Baking Company Ltd appeal, known widely in the press as “the gay cake case”. The case concerned Mr Lee, who had approached Ashers in Belfast, a family-run business whose owners were Christians that held the belief that the only form of marriage consistent with the teachings of the bible was between a man and a woman, to bake him a cake with the slogan “Support Gay Marriage”. Having initially taken his order Ashers subsequently declined to proceed with it and refunded Mr Lee his money and informed him that they could not bake the requested cake as it was inconsistent with their religious beliefs. Mr Lee brought claims for direct discrimination on the grounds of (i) sexual orientation and (ii) political opinion (as is possible in Northern Ireland). Although his claims were successful in the lower courts, the Supreme Court has reversed these decisions issuing a clear and well-reasoned judgement which gets to the heart of what amounts to direct discrimination.

Discrimination on the Grounds of Sexual Orientation

The lead judgement by Supreme Court President, Lady Hale first examined the question of whether Ashers had discriminated directly against Mr Lee on the grounds of his sexual orientation (i.e. whether Ashers had treated him less favourably than it would have treated someone else whose circumstances were not materially different to him other than that they had a different sexual orientation). Ashers had argued that they had not treated Mr Lee any differently than they would have treated a heterosexual person requesting a cake with the same message. Their difficulty was with “the message, not the messenger”. Indeed, Ashers were not aware of Mr Lee’s sexual orientation at the time he placed the order. They had served him before and would have served him another cake with a different slogan.

The County Court in Northern Ireland decided the case in favour of Mr Lee on the ground that support for gay marriage was “indissociable” i.e. could not be distinguished from sexual orientation. Lady Hale rejected this conclusion on the basis that people of all sexual orientations can and do support gay marriage so such views are not a “proxy” for any particular sexual orientation.

The Court of Appeal had found in favour of Mr Lee on a slightly different ground: it decided that he was treated unfavourably because of associative discrimination; i.e. the reason that Ashers refused to supply the cake was not Mr Lee’s own sexual orientation but his association with the LGBTQ community, of which they disapproved. Again, Lady Hale disagreed. There was no evidence to support this and indeed the evidence was that Ashers had employed and served gay people in the past and treated them in non-discriminatory manner. It could not be said that because the reason for the treatment had something to do with the sexual orientation of some people that Mr Lee’s treatment was “on the ground of” sexual orientation. In Lady Hale’s view “there must be a closer connection than that.” She declined to go on to define the closeness that would be sufficient but it was clear in this case that “the objection was the message and not to any particular person or persons”

Political Belief Discrimination

The second part of Lady Hale’s judgement focused on whether Ashers had treated Mr Lee less favourably on the basis of his political belief on same sex marriage. She acknowledged that there is a close association “between the political opinions of the man and the message that he wishes to promote”, and weighed this against the rights of the owners of Ashers under the European Convention on Human Rights to freedom of thought, conscience and religion. She reached the conclusion that Mr Lee had not been discriminated against on the basis of his political beliefs, because, consistent with the reasoning on sexual orientation discrimination, there was a difference between refusing to serve Mr Lee because of his beliefs, and refusing to bake Mr Lee a cake with a specific slogan. She noted that someone may well commission a cake with a belief they do not share. Although clearly Ashers could not refuse to serve Mr Lee on the basis that he held certain political beliefs, in the Supreme Court’s view the Northern Irish legislation “should not be read or given effect in such a way as to compel providers of goods, facilities and services to express a message with which they disagree, unless justification is shown for doing so.”

Commentary

The reasoning of the judgement is arguably compelling and although some commentators have expressed surprise at the result, our previous Insight before the Court of Appeal judgement discussed the central point and anticipated the outcome which we now have.

Ashers had not refused to serve Mr Lee on the basis that he or anyone else was gay. They had refused to bake a cake with a message with which they did not agree. While it is clearly important to protect individuals from discrimination, it is important that this is done on clearly principled grounds. To quote Lady Hale, “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 or any of the other protected personal characteristics. But that is not what happened in this case and it does the project of equal treatment no favours to seek to extend it beyond its proper scope.”

This case concerns service provision rather than employment, but similar issues may well arise in an employment context. An employer may be in a situation where they require to distinguish between a particular protected characteristic, such as sexual orientation or belief, and the promotion of a particular cause. Dismissal or detriment on the grounds of the former will be unlawful discrimination but will not be on the grounds of the latter.

The commentary on this case has been fairly polarised already, with discussions about Christian businesses being “forced” to act contrary to their beliefs, and conversely, advocates for LGBTQ rights arguing that the ruling is a step backwards in terms of equal rights for the community. It is, however, clearly important that equality legislation is applied consistently. One imagines that the outcome might not have been so controversial if a baker who happened to be gay had declined to bake a cake for a straight customer displaying an anti-gay marriage slogan. That being so we clearly cannot have our discrimination cake and eat it.

If you have any queries about any of the issues raised above please do not hesitate to contact a member of the Stronachs Employment Team.

Eric Gilligan, Partner and Annika Neukirch, Solicitor

Chambers UK 2018

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