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Gay cake: an extra slice

Fri, 12 Oct 2018

Anthony Korn sums up the Supreme Court’s much publicised ruling in Lee  v Ashers Baking Company Ltd where a bakery chain based in Northern Ireland did not directly discriminate ‘on grounds of sexual orientation’ when it refused to supply a wedding cake with slogan ‘support gay marriage’  on it. Nor did it (or the owners) discriminate on the grounds of religion or political belief.

Background facts

M Lee, a gay man, volunteers for Queerspace which supports the campaign in Northern Ireland to enable same sex couples to get married. The Defendants run a chain of bakeries in Northern Ireland, although their products are available to order ‘on line’ throughout the UK and Republic of Ireland.  Mr and Mrs McArthur, who own the bakery, are both Christians and adhere to the belief that the only form a marriage consistent with Biblical teaching is between a man and a woman. Their belief is reflected in the Bakery’s name ‘Bread from Asher shall be rich and he shall yield royal dainties’ (one learns something new every day).

Mr Lee 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 raised no objection at the time because she wished to consider how to explain her objection and to spare Mr Lee any embarrassment. Mr Lee paid for the cake. However, he was subsequently advised by the Macarthurs that they could not fulfil the order because they were a Christian business and could not print the slogan requested. Mrs McArthur apologised to Mr Lee and gave him his money back.

Mr Lee, supported by the Human Rights Commission, brought a claim for discrimination on grounds of direct sexual orientation and direct discrimination on the grounds of religious/political belief. His sexual orientation discrimination claim was upheld and he was awarded £500 as compensation. The Macarthurs appeal was rejected by the Northern Ireland Court of Appeal but succeeded in the Supreme Court.

A brief analysis    

As is often the case in discrimination cases, much turned on the findings made by the District Judge in Northern Ireland: she did not find that the bakery refused to fulfil the order because of Mr Lee’s actual or perceived sexual orientation. She found that they ‘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’ but, perhaps more importantly, she found that they would also have refused to supply a cake with the message request to a heterosexual customer.  In a nutshell, their objection was to the message, not the messenger. 

In those circumstances, it is not surprising that the Supreme Court ruled that there was no direct discrimination on grounds of sexual orientation, religion or political belief. Lady Hale, the leading discrimination law justice in Supreme Court, referred to the earlier judgment of Lord Neuberger in Islington Borough Council v Ladele [2010] 1WLR 955 where it was stated “it cannot constitute direct discrimination to treat all employees in precisely the same way”. By definition direct discrimination involves treating people differently because of a ‘protected’ characteristic. The arguments addressed to the Supreme Court based on associative and perceived discrimination failed for broadly the same reason.

Having your cake and…

The Supreme Court’s ruling does not in any way overturn its earlier rulings that letting rooms to married couples but not civil partners was directly discriminatory discriminatory because marriage was (at that time) indissociable from heterosexual orientation. Lady Hale makes it clear that the bakery could not refuse to provide a cake-or any other products- to Mr Lee because he was a gay man or because he supported gay marriage.  Clearly had it been found that the reason for the refusal been connected with Mr Lee’s sexual orientation, then the appeal would not have been successful. But that was entirely different from being required to supply a cake iced with a message with which they profoundly disagreed as they were entitled to do under Article 10(1) of the Human Rights Convention.

Nonetheless, I am left wondering given the strong beliefs held by the McArthurs, whether or not the Judge would have made the same finding if they had been cross examined in greater depth on the reasons for their refusal bearing in mind that a decision is treated as discriminatory even if the ‘unlawful’ element is only forms part of those reasons. Food for thought!

As far as Mr Lee was concerned, he was in fact able to make arrangements with another baker to supply a cake in accordance with his specifications.     

Anthony Korn
Employment Group
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