Bakers lose “gay cake case”

The Northern Ireland Court of Appeal has found that Ashers bakery is liable for unlawful discrimination by refusing to bake a cake iced with a ‘support gay marriage’ message, for a gay customer, Mr Lee.  A copy of the judgment is available here: http://www.equalityni.org/ECNI/media/ECNI/Cases%20and%20Settlements/2016/AshersFullJudgement-Appeal.pdf.

Cloisters’ Robin Allen QC acted for the customer (the plaintiff) in this significant ruling which will have wide-reaching implications. The case may arise from a cake, but it deals with a fundamental question in our democratic society: how much should religious beliefs be protected when they conflict with other people’s protected rights?

Background

Mr Lee is a gay man who believes in the right to same-sex marriage and placed an order with Ashers bakery for a cake decorated with the slogan “Support Gay Marriage”. Ashers rejected the order 48 hours after it had been made on the basis that it would offend the owners’ Christian beliefs. Mr Lee successfully brought claims for direct and indirect discrimination in the County Court on the grounds of (1) sexual orientation; and (2) his political belief.

Analysis

The Northern Ireland Court of Appeal’s judgment is the latest in a line of significant court decisions which have tended to protect religious freedom only to the extent that it does not impinge on the basic rights of others. For instance, in 2013 the UK Supreme Court found in favour of a gay couple who had been refused to take up their reservation at a Bed & Breakfast run by Christians (see Bull and another v Hall and another [2013] UKSC 73). Such cases make a crucial distinction between the right to hold a belief, which is absolute, and the freedom to manifest a belief, which is qualified.

Some critics of Mr Lee’s position argue that the judgment in this case will force people to express a political message at odds with their own views. In the view of this author, that concern is misplaced: this judgement deals with the actions of businesses in the public sphere, not the rights of private individuals in the private sphere. There is no requirement that businesses have to agree publicly or privately with the views of their customers, nor associate with or promote such views. During the EU referendum, for instance, the Evening Standard carried ‘Vote Leave’ adverts; the paper’s editorial position strongly backed ‘remain’. Companies are not faith groups. They are non-religious bodies which operate in the public sphere to provide services and goods for profit. The Northern Ireland Court of Appeal’s judgment in Lee v Ashers Bakery underlines that business cannot refuse to supply goods on the grounds that they do not agree with a particular social opinion.

Is the law dictating how those with religious and political convictions can act in public? Perhaps. But that is not necessarily a bad thing in the context of LGBT rights, which for too long have lagged behind the protections afforded to other groups. Only 35 years ago, homosexuality was a crime in Northern Ireland. Only 14 years ago, local authorities in Northern Ireland were banned from any action which might ‘promote’ homosexual relationships in schools. Only last week, the House of Commons failed to pass a bill pardoning men, still alive today, for criminal convictions for having gay relationships. Today, civil Marriage for same sex couples is still unlawful in Northern Ireland. The Court of Appeal’s judgement exemplifies the power of the courts to secure rights of minorities and engender a more tolerant society, even in the face of pressure to the contrary. Tolerance, after all, means “showing willingness to allow the existence of opinions or behaviour that one does not necessarily agree with”. The law agrees: it is not for Mr Lee to find a bakery prepared to bake a ‘gay cake’, but for businesses to be willing to provide services to customers, even if they disagree with legitimately protected views or sexual identity.

Cloisters specialises in discrimination law. Its members have written extensively on the interplay between religious freedom, pluralism and the protection of gay people from discrimination. Cloisters’ barristers have also appeared in many of the leading cases such as Bull and another v Hall and another [2013] UKSC 73 and the Ashers bakery case.

Tom Gillie, Cloisters

24.10.16