Photo taken from the Peter Tatchell Foundation website:
In Chapter 7 of Introductory Scots Law, I looked at a case from Northern Ireland which quickly gained the unfortunate moniker or nickname of the “Gay cake row”.
The case in question was Ashers Baking Company Ltd & Others v Lee  and the dispute eventually reached the UK Supreme Court for its final determination (Lee v Ashers Baking Company Ltd & Others  UKSC 49).
It’s probably useful to have a brief recap of the facts of the case:
Ashers Bakery chain is owned by the McArthur family and has its operational base in County Antrim, Northern Ireland. The McArthurs are practising Christians. In May 2014, Gareth Lee, a customer, raised a complaint when his order for a cake was declined by Ashers. Mr Lee had asked for a cake depicting the characters, Bert and Ernie from the well known, American children’s television series, Sesame Street. The cake was also to have a slogan place on it: “Support gay marriage”. The bakery owners justified the refusal to make the cake on grounds of their strong religious beliefs and they could not be seen to be condoning or supporting gay marriage. Mr Lee also claimed that he had suffered discrimination due to his political beliefs – he volunteered with QueerSpace, an organisation which supports LGBT+ people.
At the time of these events (and even now in February 2019), Northern Ireland is the only part of the United Kingdom where same sex marriage is not available (although same sex couples can enter civil partnerships). QueerSpace is not a campaigning organisation, but it does have a pro-same sex marriage position. Mr Lee, supported by the Equality and Human Rights Commission, decided to pursue a claim for direct discrimination on the grounds of his sexual orientation and political beliefs against Ashers for its refusal to provide him with a service. The McArthur family was strongly of the view that their rights to freedom of thought, conscience and religion (which they enjoyed courtesy of Article 9 of the European Convention on Human Rights) were being infringed if they had to complete Mr Lee’s order as originally requested.
The Belfast County Court issued a judgement against Ashers finding that it had discriminated against Lee by reason of his sexual orientation and political beliefs. Ashers appealed this decision and, in October 2016, Sir Declan Morgan, Northern Ireland’s Chief Justice (sitting in the Court of Appeal) was strongly of the view that Mr Lee had suffered direct discrimination on the grounds of his sexual orientation and his political beliefs. The Court of Appeal of Northern Ireland also stated that Mr Lee had suffered discrimination by reason of his association with members of the LGBT+ community.
Ashers Bakery was then given leave to appeal to the UK Supreme Court. On 10 October 2018, Lady Hale, delivering the unanimous judgement of the Supreme Court, stated that
“In reaching the conclusion that there was no discrimination on grounds of sexual orientation in this case, I do not seek to minimise or disparage the very real problem of discrimination against gay people. Nor do I ignore the very full and careful consideration which was given to the development of the law in this area …
… Everyone, as article 1 of the Universal Declaration of Human Rights put it 70 years ago is “born free and equal in dignity and rights”. 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.”
After dismissing the part of Mr Lee’s claim for sexual orientation discrimination, Lady Hale then went on to address the issue of whether the refusal by Ashers to make the cake with its slogan could be construed as a discrimination on the grounds of someone’s political beliefs. She noted that, in Northern Ireland, political beliefs were constitutionally protected. That said, however, this part of Mr Lee’s claim should also be dismissed:
“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. It was not as if he were being refused a job, or accommodation, or baked goods in general, because of his political opinion …
… The evidence was that they were quite prepared to serve him in other ways. The situation is not comparable to people being refused jobs, accommodation or business simply because of their religious faith. It is more akin to a Christian printing business being required to print leaflets promoting an atheist message.”
“The objection [by the Bakery] was to the message, not the messenger.”
Ashers Bakery was not aware of Mr Lee’s political beliefs and involvement with QueerSpace and, therefore, it could not be said that he was being discriminated against by reason of his association with certain individuals who possessed protected characteristics (i.e. members of the LGBT+ community):
It is worth noting that the reason political beliefs are constitutionally protected in Northern Ireland has much to do with that region’s troubled history since its creation in 1921 as a result of the Government of Ireland Act 1920.
Lady Hale also noted:
“The Court of Appeal [of Northern Ireland] held 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 58). This suggests that the reason for refusing to supply the cake was that Mr Lee was likely to associate with the gay community of which the McArthurs disapproved. But there was no evidence that the bakery had discriminated on that or any other prohibited ground in the past. The evidence was that they both employed and served gay people and treated them in a non-discriminatory way. Nor was there any finding that the reason for refusing to supply the cake was that Mr Lee was thought to associate with gay people. The reason was their religious objection to gay marriage.”
The UK Supreme Court has made quite a nuanced decision in dealing with the dispute between Ashers Bakery and Mr Lee. It will not satisfy everyone. If one had had to stare into the legal equivalent of a crystal ball before the Ashers’ decision, the logic of a previous decision of the Supreme Court – Bull and Another v Hall and Another  UKSC 73 – might have led many to speculate that the Bakery would lose the appeal. This has turned out not to be the case.
In Bull (also discussed in Chapter 7 of Introductory Scots Law), it will be recalled that the Christian owners of a Cornwall B&B establishment had committed an act of direct discrimination by refusing to accommodate a same sex couple who had pre-booked a double room. The owners of the establishment had defended their decision to refuse the couple a double room on the basis of their religious beliefs. Interestingly, it was Lady Hale who also gave the leading speech in Bull.
I think we have to be very clear about the implications of the Supreme Court’s judgement: Mr Lee was not refused the provision of services by Ashers Bakery because of his sexual orientation. The Bakery was not refusing to bake him a cake: it objected to the message that he wanted to place on the cake. As David Scoffield QC, who appeared for Ashers Bakery, submitted:
“The reason for treating Mr Lee less favourably than other would-be customers was not his sexual orientation but the message he wanted to be iced on the cake. Anyone who wanted that message would have been treated in the same way.”
In the Bull decision, Lady Hale referred to Bayatyan v Armenia (2012) 54 EHRR 15, 494, where the Grand Chamber of the European Court of Human Rights made the following statement:
“The Court reiterates that, as enshrined in article 9, freedom of thought, conscience and religion is one of the foundations of a ‘democratic society’ within the meaning of the Convention. This freedom is, in its religious dimension, one of the most vital elements that go to make up the identity of believers and their conception of life, but it is also a precious asset for atheists, agnostics, sceptics and the unconcerned. The pluralism indissociable from a democratic society, which has been dearly won over the centuries, depends on it. That freedom entails, inter alia, freedom to hold or not to hold religious beliefs and to practise or not to practise a religion.”
Quite simply, it would have been a grave breach of the McArthur family’s sincerely held Christian beliefs – which are protected under Article 9 of the European Convention – if they had been forced to make a cake with the particular slogan which Mr Lee had requested.
A number of links to articles on the BBC website which cover the case can be found below:
Ashers will not seek costs from the Equality Commission after winning its appeal at the Supreme Court.
Copyright Seán J Crossan, February 2019