Daphne Romney QC considers the Supreme Court’s judgment in Lee v Ashers Baking Company Ltd and others

Daphne Romney QC

The Supreme Court has upheld the appeal from Ashers a Northern Irish bakery and its owners, Mr and Mrs McArthur; they had refused to bake a cake with the message “Support Gay Marriage”. The Court held unanimously that the bakery had neither discriminated against Gareth Lee on the grounds of sexual orientation nor political belief; in any event, to compel Ashers to put a message on a cake with which they profoundly disagreed would a breach of Articles 9 and 10 of the Convention of Human Rights.

The bakery offers a service where customers bring in a photo, which is then reproduced in icing on one of its cakes. The brochure did not stipulate any restrictions on the content of the icing. Mr Lee ordered a cake with the message “Support Gay Marriage” and the cartoon characters Bert and Ernie, the emblems of the Northern Irish movement Queer space, of which Mr Lee was a member. Mrs McArthur originally agreed to bake the cake and took £36 50 from Mr Lee; but later, after discussion with her husband, they decided to tell Mr Lee that they could not bake the cake as they regarded its message as fundamentally against their Christian beliefs. Mr Lee referred  the matter to the Equality Commission of Northern Ireland which brought an action for discrimination in the supply of goods and services.

The Equality Act 2010 does not apply to Northern Ireland. Its discrimination legislation is therefore piecemeal, as was the case in Great Britain before 2010. Religion and political belief is protected in The Fair Employment and Treatment Order (Northern Ireland) 1998 (‘FETO’). Paragraph 3 prohibits discrimination on the grounds of ‘discrimination on the ground of religious belief or political opinion’. Paragraph 3(2)(a) says A person discriminates against another person on the ground of religious belief or political opinion in any circumstances relevant for the purposes of this Order if—(a) on either of those grounds he treats that other less favourably than he treats or would treat other persons….Paragraph 28 provides1) It is unlawful for any person concerned with the provision (for payment or not) 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 them2(g) of that paragraph includes ‘the services of any profession, trade or business, or any local or other public authority.

’Sexual orientation is protected in the Equality Act (Sexual Orientation) Regulations (Northern Ireland) 2006. Reg. 2 defines sexual orientation as ‘(a) persons of the same sex; (b) persons of the opposite sex; (c) persons of the same sex and of the opposite sex’. Reg. 5(1) is identical to paragraph 28 of FETO set out above.

The District Judge at first instance found that Mr Lee’s sexual orientation was not the reason for cancelling the order – rather it was Mr and Mrs McArthur’s opposition to same sex marriage, which they viewed as ‘sinful’. It follows that had Mr Lee ordered a cake without that message, he would have got one. It was the message and not the messenger they objected to. However, she held that the message was ‘indissociable’ with sexual orientation. The Northern Ireland Court of Appeal held that this was a case of associated discrimination.

The Supreme Court dismissed both interpretations. Baroness Hale DSC drew the distinction between the man and the message. Ashers did not refuse to bake the cake because Mr Lee was gay, but because it did not agree with the message. It would equally have refused to bake that cake had it been requested by a straight person; there was therefore no discrimination because anyone requesting that cake would have been treated the same way. It went on to reject the ‘indissociable’ argument as misconceived because the belief in same sex marriage was not limited to gay people – many people supported same sex marriage who were not themselves gay. There was therefore a distinction between this case and Preddy v Bull [2013] 1 WLR 3741 where a gay couple was refused a double bed in a B&B run by devout Christians because only married couples were allowed a double bed. That was ‘indissociable’ with sexual orientation because (at that time) only heterosexual couples could marry. Here, ‘there is no such identity between the criterion and sexual orientation of the customer. People of all sexual orientations, gay, straight or bi-sexual, can and do support gay marriage. Support for gay marriage is not a proxy for any particular sexual orientation’. (at paragraph 25)As for associated discrimination, the Supreme Court held that the District Judge had not made any such finding (paragraph 34).

In any event, Baroness Hale firmly rejected the Court of Appeal’s conclusion that ‘this was a case of association with the gay and bisexual community and the protected personal characteristic was the sexual orientation of that community”’. That, she said, was an insufficiently close connection with sexual orientation. She also did not agree with the Court of Appeal that ‘the benefit from the message or slogan on the cake could only accrue to gay or bisexual people’ because ‘It could also accrue to the benefit of the children, the parents, the families and friends of gay people who wished to show their commitment to one another in marriage, as well as to the wider community who recognise the social benefits which such commitment can bring’. (at  paragraph 33).

The Supreme Court also seemed to cast doubt on the concept of discrimination as explained in English v Thomas Sanderson Blinds Ltd [2009] ICR 543 where the claimant was harassed for being gay although his colleagues knew that he was not. The Supreme Court preferred the ‘powerful’ dissenting judgment of Laws LJ that such harassment could arise only where sexual orientation was ‘actual, perceived or assumed’ (at paragraph 34).The Supreme Court held that belief in gay marriage could indeed be a political belief. However, the relevant political opinion was Mr Lee’s, not the discriminators’. It overruled three Northern Irish cases (In re Northern Ireland Electricity Service’s Application [1987] NI 271, In re O’Neill’s Application [1995] NI 274, at 279-280, and in Ryder v Northern Ireland Policing Board [2007] NICA 43) which had held that the words in paragraph 3(2) of FETO (or its predecessor in the Fair Employment (Northern Ireland) Act 1976) were capable of being read widely enough to encompass acts done based on the religious belief or political opinion of the person doing the act. ‘Such a reading would be inconsistent with article 3(2)(a) which requires a comparison between the person receiving the less favourable treatment and “other persons”: this would not be possible if the treatment were on the grounds of the discriminator’s beliefs because everyone would be treated alike’. (at paragraph 44). The religious or political belief must be that of the person meting out the treatment complained of. On that basis, it was not Mr Lee’s political belief that made Mr and Mrs McArthur refuse to bake the cake – it was being required to support a message it did not agree with. That distinction is a very fine one – after all, it was their belief that disagreed with his belief and made them refuse. However the Supreme Court drew a distinction between refusing Mr Lee because of what he believed and the reason for refusing his request.

The Supreme Court acknowledged that it was arguable that Mr Lee’s political belief was ‘indissociable’ with the message, and so it considered  Mr and Mrs McArthur’s freedom of religion in Article 9 EHRC and expression in Article 10 EHRC. By compelling them to bake the cake on pain of damages, their rights would be breached – this was wholly different from compelling them to serve a customer in the ordinary way, which is required by, and justified in, law. Baroness Hale concluded in paragraph 56 ‘FETO 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.’ This extended in her view to any message on the cake, including support for a political party or religion or support for living in sin.The law is therefore very unclear. One can see that requiring a Jewish publisher to publisher a Holocaust denial book, for example, or a Muslim publisher to publish cartoons depicting the Prophet Mohammed, would be deeply offensive and would carry their name on the spine of the book. But can it be said that baking a cake, whether promoting gay marriage or praising Brexit, is associating with, or promoting, the sentiments on the cake? Is a wedding cake in itself a message for same sex marriage, entitling the baker to refuse to bake it? What if it says ‘Congratulations Bill and Ben?’  Does that make it a message which the baker is entitled to refuse?

The judgment makes shopping a lottery for the customer and gives the supplier a “conscience clause”. When consulting on the 2006 Sexual Orientation Regulations, the Government took note of the objections that non-profit religious organisations should have an exemption on the basis of religious ethos, but did not extend that exemption to ‘Christian businesses’, which it said could be used as a mask for discrimination. Despite that rejection, the Supreme Court has given all businesses the right to opt out of supplying services if it disagrees with the message a customer wants to convey. That will lead to confusion and will also possibly be used as the mark for discrimination the Government was worried about. It seems likely that there will be many more cases before the matter is settled.