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Refusing to bake a cake supporting gay marriage - not discriminatory?

Safe to say, this week's landmark ruling by the Supreme Court in Lee v Ashers Bakery has been rather controversial.

In short, the Supreme Court held that a Christian bakery did not discriminate on the grounds of sexual orientation or political opinion when they refused to provide a cake bearing the phrase, "Support Gay Marriage". In doing so, it overturned the previous decisions made by the Northern Ireland County Court and the Court of Appeal. But how did it reach this decision?

Facts

Mr Lee was a gay man associated with an organisation representing the lesbian, gay, bisexual and transgender (LGBT) community in Northern Ireland. Mr Lee placed an order for a customised cake bearing the message "Support Gay Marriage". The owners of Ashers Bakery were opposed to same-sex marriage based on the Christian belief that marriage must be between a man and a woman. Mr Lee's order was subsequently cancelled and a refund provided. He then brought proceedings against Ashers Bakery for direct discrimination on the grounds of sexual orientation and political opinion. 

The parties being in Northern Ireland, the claim was brought under the provisions of the Equality Act (Sexual Orientation) Regulations (Northern Ireland) 2006.  However, it is clear that the Supreme Court's reasoning applies equally to the application of the Equality Act to similar cases in the rest of the UK

The Supreme Court decision

  • Direct Discrimination - sexual orientation

The Supreme Court held that there was no direct discrimination on the grounds of sexual orientation. Crucially, it was held that the bakery's objection was to the message, not the messenger. The bakery would have supplied Mr Lee with a cake without the message "Support Gay Marriage" and would also have refused to supply a cake with the same message requested by an heterosexual customer.

The Supreme Court went on to consider the issue of what is referred to as "discrimination by association". The Court of Appeal's finding on this was also rejected by the Supreme Court - there was no evidence that the reason for refusing to supply the cake was that Mr Lee was thought likely to associate with gay people. It could not be said that support for gay marriage was confined to gay people and the fact that the message had something to do with the sexual orientation of some people was not sufficient to make out the claim.

As Lady Hale delivering the lead judgment put it:

"In a nutshell, the objection was to the message and not to any particular person or persons."

  • Discrimination because of political opinion

Next for the Supreme Court to consider was whether the refusal amounted to discrimination because of political opinion under a piece of legislation unique to Northern Ireland.  It was held that support for gay marriage was a political opinion and, as it was easier to link the message on the cake with the political opinion of the person ordering it than had been the case with his sexual orientation, in theory the refusal to bake the cake could amount to discrimination based on political opinion.  However, this finding had to viewed in light of its compatibility with the law on human rights.

The right to freedom of expression also includes the right not to express an opinion. The Supreme Court found that no justification had been shown for imposing an obligation on the bakers to supply a cake bearing a message with which the bakers profoundly disagreed.  This meant that the legislation protecting against discrimination because of political opinion had to be interpreted in such a way not to interfere with that human right, resulting in a finding of no discrimination in this case.

Victory for human rights or attack on protection against discrimination?

Political opinion on this high profile and controversial decision will no doubt be split with human rights activists celebrating the ruling as a victory for freedom of expression and the rights of businesses to refuse to emblazon a political message if they have a conscientious objection to it.  Seen in the light of the right to refuse messages which are racist, sexist or anti-gay, the strength of this argument is evident.  However, the ruling is also a big disappointment for the LGBT community who see this as a direct attack on protection against discrimination.

Whatever you may think of the outcome, it must be the case that this ruling should not be seen as permission for anyone to discriminate against LGBT people, such discrimination remaining unlawful.

 

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