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Lydia Banerjee and Bianca Balmelli: You can have your cake but they don’t have to make it

The Supreme Court today handed down their decision in Lee (Respondent) v Ashers Baking Company Ltd and others (Appellants) [2018] UKSC 49

The facts
Mr and Mrs McArthur run a bakery named Ashers Baking Company Ltd (“Ashers”).

The McArthurs are Christians who hold the religious belief that, as per the Bibles teachings, the only acceptable form of sexual expression is between a man and a woman within marriage and that the only form of marriage is between a man and a woman.

Mr Lee is a gay man and he volunteers with QueerSpace. QueerSpace supports the campaign in Northern Ireland to enable same sex marriage. QueersSpace hosted a private event to mark the end of Northern Ireland anti-homophobia week and the political momentum towards same-sex marriage.

Mr Lee wanted to bring a cake to the event and therefore went to Ashers and placed an order for a cake to be iced with his design, a coloured picture of cartoon-like characters “Bert and Ernie”, the QueerSpace logo, and the headline “Support Gay Marriage”.

Mrs McArthur took the order and initially raised no objection to baking the cake, she however said that she did this because she wanted to consider how to explain her objections to spare Mr Lee any embarrassment.

After discussing it, the McArthurs decided that they could not in conscience produce a cake with the requested slogan and that they therefore could not fulfil the order.

Mrs McArthur therefore contacted Mr Lee and explained that his order could not be fulfilled, because Ashers was Christian business and could therefore not print the slogan requested. She apologised and Mr Lee received a full refund.

Mr Lee was able to have another bakery make the cake (with slogan) in time for the event.

The two relevant pieces of legislation are:

  • the Equality Act (Sexual Orientation) Regulations (Northern Ireland) 2006 (SI 2006/439) (“SOR”), which prohibits the discrimination in the provision of goods, facilities or services on grounds of sexual orientation; and
  • the Fair Employment and Treatment (Northern Ireland) Order 1998 (SI 1998/3162 (NI 21)) (“FETO”), which prohibits the discrimination in the provision of goods, facilities or services on the ground of religious belief or political opinion.

The Sexual Orientation Claim
The SC had to consider both whether there was direct discrimination on the basis of Mr Lee’s sexual orientation as well as associative discriminations on the basis of Mr Lee’s association with the gay community.

Direct discrimination on the basis of Mr Lee’s sexual orientation:
The DJ accepted the McArthurs’ evidence that they would have provided Mr Lee with the cake without the slogan and that they would also have refused to supply the requested cake to a hetero-sexual customer.

The DJ found that the McArthurs had “cancelled this order because they oppose same sex marriage for the reason that they regard it as sinful and contrary to their genuinely held religious beliefs” and not because of Mr Lee’s sexual orientation. [Para 22]  Despite making this finding the DJ found that there was direct discrimination based on Mr Lee’s sexual orientation.

The SC disagreed, the objection was to “the message, not the messenger” and there therefore was no discrimination on grounds of Mr Lee’s sexual orientation. [Para 22 & 35]

The DJ also considered whether “the criterion used by the bakery was “indissociable” from the protected characteristic and held that support for same sex marriage was indissociable from sexual orientation”. [Para 25]

The SC also rejected this and found that as “[p]eople of all sexual orientations, gay, straight or bi-sexual, can and do support gay marriage” there is no identity between the criterion and sexual orientation of the customer. Therefore, “[s]upport for gay marriage is not a proxy for any particular sexual orientation”. [Para 25]

The fact that Ashers would have refused to complete the order even if a hetero-sexual person had placed the order was pivotal in the SC coming to its conclusion that there was no discrimination on grounds of Mr Lee’s sexual orientation.

Associative discriminations on the basis of Mr Lee’s association with the gay community
The Court of Appeal found 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”. [Para 28]

In such a case the reason for refusing to the supply the cake would have needed to be as a result of Mr Lee’s likely association with the gay community, of which the McArthurs disapproved.

The SC accepted that there was no evidence that Ashers had discriminated on that or any other prohibited ground in the past. In fact, Ashers both employed and served gay people (including Mr Lee) and treated them in a non-discriminatory way.

There was also no finding that the reason for the McArthurs refusing to supply Mr Lee with the cake was as a result of Mr Lee’s association with gay people.

Once again, the crux of the matter was the McArthurs’ religious objection to gay marriage and the fact that “the objection was to the message and not to any particular person or persons”. [Para 34]

The SC felt it would be unwise to define the closeness of association required to justify a finding of associative discrimination – but restricted their conclusions to the facts of the case. [Para 34]

The SC therefore found that “there was no discrimination on grounds of sexual orientation in this case”.

In light of this finding the SC did not have to consider whether it was necessary to read down the SORs to take into account the McArthurs’ Convention rights.

The Political Belief’s Claim
Two fundamental issues arise in relation to this claim:

  1. Did the bakery discriminate against Mr Lee on the grounds of his political opinions by refusing to supply him with a cake iced with this particular message?
  2. If it did, is FETO invalid, or should it be read down under section 3(1) of the Human Rights Act 1998 as incompatible with the rights of freedom of religion and freedom of expression protected by articles 9 and 10 of the European Convention?

As to the first point.  The DJ had upheld the claim for discrimination appearing to accept an argument put before her that discrimination can take place on the grounds of the discriminator’s religious belief and political opinion.  The SC disagreed.  “The purpose [of discrimination legislation] is not to protect people without [a protected characteristic] from being treated less favourably because of the protected characteristic of the alleged discriminator”…”It is also a well-established principle of equality law that the motive of the alleged discriminator is irrelevant”. [para 43]

It followed that no claim for discrimination could be based on the religious beliefs of the McArthurs’.  The only basis for a claim was therefore less favourable treatment based on Mr Lee’s political opinions.  The SC accepted that support for gay marriage is a political opinion.  The SC then decided the matter in the same way as they decided the sexual orientation claim.  “The objection was not to Mr Lee because he, or anyone with whom he associated, held a political opinion supporting gay marriage.  The objection was to being required to promote the message on the cake.  The less favourable treatment was afforded to the message not to the man… the evidence was that they were quite prepared to serve him in other ways”. [para 47]

The SC recognised that there was a close association between the political opinions of the man and the message which he wished to promote such that it could be argued that they were indissociable.  For that reason they considered it necessary to consider the impact of the McArthurs’ Convention rights on FETO.

The Convention rights
Article 9 enshrines the right to freedom of thought, conscience and religion.  Obliging a person to manifest a belief which he does not hold has been held to be a limitation on his article 9(1) rights – Buscarini v San Marino (1990) 30 EHRR 208.

The freedom not to be obliged to hold or to manifest beliefs that one does not hold is protected by Article 10 of the Convention and the right to freedom of expression.

Both Articles 9 and 10 are qualified rights which may be limited or restricted in accordance with the law and insofar as this is necessary in a democratic society in pursuit of a legitimate aim.

On this subject the SC stated: “The bakery could not refuse to provide a cake – or any other of their products – to Mr Lee because he was a gay man or because he supported gay marriage.  But that important fact does not amount to a justification for something completely different – obliging them to supply a cake iced with a message with which they profoundly disagreed.” [para 55]

Section 3(1) of the Human Rights Act 1998 requires that all legislation is, so far as it is possible to do so, to be read and given effect in a way which is compatible with the Convention rights.  If therefore there were to be discrimination against Mr Lee because of the refusal to make the cake, a fact which the SC doubted, then “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”. [para 56].

The SC considered that on the facts, to uphold the convention rights of the McArthurs meant holding the company not liable because otherwise their convention rights would effectively be negated by the use of a limited company.

We live in a society where it is inevitable that competing rights will come into conflict. A balance therefore needs to be achieved in dealing with our fellow man.

The McArthurs, despite their religious beliefs, treated Mr Lee with the respect he deserved and did not treat him any differently from their hetero-sexual customers.  Their objection only arose when they were asked to create something that conflicted with their religious beliefs.

The SC repeatedly mentions that the McArthurs’ issue was with the message and not with Mr Lee and this was a material consideration in balancing the opposing rights.

In this matter Mr Lee’s dignity was not being impugned, which makes it easier to balance it against the McArthurs’ religious beliefs.

The SC would not have reached the same conclusion had the McArthurs not only had an issue with the message, but also with the messenger.  Their consideration of the US Supreme Court case of Masterpiece Cakeshop Ltd v Colorado Civil Rights Commission 4 June 2018 makes plain the importance of the distinction [paras 59 to 62]

Lady Hale summed up the issues cogently at para 35 where she stated:

 “… I do not seek to minimise or disparage the very real problem of discrimination against gay people. … Experience has shown that the providers of employment, education, accommodation, goods, facilities and services do not always treat people with equal dignity and respect, especially if they have certain personal characteristics which are now protected by the law. 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”. [emphasis added]
Article written by Lydia Banerjee (2007) and Bianca Balmelli (Pupil)
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