In an important case which has highlighted the difficulties which can arise when balancing the rights of individuals with different protected characteristics, the Supreme Court has held in Lee v Ashers Baking Company Ltd and ors, that it is not unlawful discrimination, either on grounds of sexual orientation or political opinion, for a bakery to refuse to supply a cake iced with the message ‘Support Gay Marriage’. The bakery owners held religious beliefs that gay marriage is inconsistent with Biblical teaching and therefore unacceptable to God. The Supreme Court’s decision has overturned both the Northern Ireland County Court and Court of Appeal’s judgments in this case.
Ashers Bakery is run by Mr and Mrs McArthur. The McArthurs are Christians and hold the religious views that:
- the only form of full sexual expression which is consistent with Biblical teaching (and therefore acceptable to God) is that between a man and a woman within marriage; and
- the only form of marriage consistent with Biblical teaching (and therefore acceptable to God) is that between a man and a woman.
They wished to run Ashers in accordance with their religious beliefs.
Mr Lee is a gay man who had previously purchased cakes from Ashers bakery. On this occasion, he wished to have a cake made for an event organised by QueerSpace to mark the end of Northern Ireland anti-homophobia week, and the political momentum towards same-sex marriage. He requested that the cake have a coloured picture of “Bert and Ernie”, the QueerSpace logo and the headline “Support Gay Marriage”. Mr Lee did not know anything about the McArthurs’ religious beliefs nor they about his sexual orientation. Ashers decided that they could not fulfil Mr Lee’s order because they were a Christian business and were not prepared to print the slogan requested.
Mr Lee brought claims for unlawful sexual orientation discrimination under the Equality Act (Sexual Orientation) Regulations (Northern Ireland) 2006 (“SOR”). He also claimed discrimination on the ground of political opinion under the Fair Employment and Treatment (Northern Ireland) Order 1998 (“FETO”) (a piece of legislation unique to Northern Ireland).
Discrimination in the provision of goods, facilities or services on grounds of sexual orientation is prohibited by the SOR. Under Regulation 3(1) direct discrimination is where a person (A) discriminates against another person (B) if (a) on grounds of sexual orientation, A treats B less favourably than he treats or would treat another person” and regulation 5(1) states that 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… by refusing or deliberately omitting to provide him with any of them”.
The Supreme Court held that the McArthurs had not unlawfully discriminated against Mr Lee on the grounds of sexual orientation. They made this finding on the basis that the McArthurs’ objection to Mr Lee’s bakery order was to the message on the cake, not to the personal characteristics of Mr Lee, or anyone else with whom he was associated. They rejected the Court of Appeal’s view that the message was indissociable from Mr Lee’s sexual orientation. Support for gay marriage did not necessarily indicate the sexuality of the person holding that opinion. The McArthurs would, in effect, have refused to bake a cake supporting gay marriage for any customer, regardless of their sexual orientation.
The Supreme Court also considered that the same arguments could apply to the political opinion discrimination issue. However, on this issue, it considered that is was also appropriate to consider the impact of the McArthurs’ Convention rights on the meaning and effect of FETO. Here, the Court held that Article 9 (freedom of religion) and Article 10 (freedom of expression) had been engaged in this case and that the McArthurs could not be obliged to manifest beliefs that they did not hold.
Employers may find the guidance in this case useful for establishing the extent of protection which applies under discrimination laws; however, it does also serve to highlight the complexity of the issues at stake. As a note of caution, employers need to be aware that this case does not permit businesses to refuse to provide their services to gay people or to discriminate against individuals based on their sexual orientation or the sexual orientation of others – what it does do, however, is highlight that it is people, not opinions, which are protected.