The Northern Ireland Court of Appeal has upheld the decision of the county court in Lee -v- Ashers Baking Company 2016, widely reported as the ‘gay cake case’. The Court of Appeal confirmed that the refusal by the bakery to bake a cake bearing a message in support of gay marriage was in fact direct discrimination.

Mr Lee placed an order at the bakery for a cake bearing a logo, which featured the characters Bert and Ernie and the phrase ‘Support Gay Marriage’. The owners of the bakery, who are devout Christians, cancelled the order and refused to provide the cake. Mr Lee was given a full refund (and subsequently took his business elsewhere).

At first instance Mr Lee succeeded in a claim for direct discrimination, and this decision was upheld by the Court of Appeal. The Court held that this was an instance of direct discrimination against Mr Lee by association on the ground of sexual orientation. The benefit from the message on the cake could only accrue to gay or bisexual people. It was the use of the word ‘gay’ which resulted in the bakery owners cancelling the order; they would not have objected to a cake which said, “support marriage”. Mr Lee was therefore discriminated against by association with the gay community, and the protected characteristic was the sexual orientation of that community.

The Court rejected the bakery owners’ argument that their rights under Article 9 (freedom of thought, conscience and religion) and Article 10 (freedom of expression) had been infringed. To allow the bakery to decide not to provide services to the gay community would be to permit direct discrimination. The Court also held that making the cake did not of itself force the bakery or its owners to support or promote gay marriage themselves - much like icing a cake in the colours of a particular football team doesn’t show that the bakery supports that team.

This case deals with a clash between two protected characteristics: sexual orientation and religious belief. Although not in an employment law context, the principles of law are the same.