Discrimination Law: Finding the Balance between Sexual Orientation and Political or Religious Views
Friday, 4th November 2016
In discrimination law, the tension between sexual orientation and political or religious opinions was explored in the recent Northern Ireland Court of Appeal case of Lee v McArthur and Ashers Baking Company Limited .
In May 2014, Mr Lee placed an order with McArthur and Ashers Baking Company for a customised cake for a private event. Mr Lee gave the Bakery an A4 sheet with a colour picture of "Bert and Ernie" with the headline caption "Support Gay Marriage". A few days later, the Bakery cancelled the order and provided Mr Lee with a refund because the Bakery was a "Christian Business".
Court of Appeal Decision
The Court of Appeal held that the Bakery had directly discriminated against Mr Lee on the grounds of his sexual orientation by refusing to bake a cake with a slogan supporting same-sex marriage. The Court held that the slogan "Support Gay Marriage" could only apply to individuals of the LGBT community and that the Bakery would not have cancelled an order from an individual requesting a cake with the slogan "Support Heterosexual Marriage". It was clear that Mr Lee had been discriminated against because of his association with the protected characteristic of sexual orientation. The Court were satisfied that the Bakery knew Mr Lee was gay and/or associated with the LGBT community.
The Bakery argued that their right to freedom of thought, conscience and religion as protected by Article 9 of the European Convention of Human Rights would be infringed if they were unable to refuse an order for a cake on religious grounds. However, the Court rejected this argument, commenting that "if businesses were free to choose what services to provide to the LGBT community on the basis of religious belief the potential for arbitrary abuse would be substantial". The Court commented that the Bakery were not being asked to endorse gay marriage, it was merely a commercial arrangement.
The Court of Appeal has upheld the now well-established principle that the religious beliefs of a service provider do not exempt that provider from the legislative prohibition on direct discrimination on grounds of sexual orientation. Delivery of goods or services must not be limited to those goods and services that do not conflict with the business's own political or religious views.
Although the Court of Appeal decision was made under the Northern Ireland Regulations, the case illustrates the issues facing businesses in England, Wales and Scotland under the Equality Act 2010.
This decision reminds all UK businesses delivering goods or services that they cannot discriminate in terms of who they provide goods and services to. It would be a good idea for all staff to be trained on equal treatment and discrimination, and businesses should make sure that their policies and practices do not breach discrimination law.