Background

Mr Lee, a gay man, had submitted an order to Ashers bakery for a cake to display a design showing fictional characters "Bert and Ernie" from the children's television show Sesame Street and the tagline – "Support Gay Marriage" (the creators of the show, Sesame Workshop, always deny that these characters are supposed to be gay – they say "they remain puppets and do not have a sexual orientation"). The bakery informed Mr Lee that Ashers would not print the requested slogan, as the concept of gay marriage was fundamentally at odds with the religious beliefs of its owners.

The relevant question is whether this act amounted to direct discrimination against the customer. This requires Mr Lee to establish that he has been treated less favourably on the grounds of a protected characteristic: either his sexual orientation, or his political opinion. If so, a question arises as to the balance between the discriminatory action and the bakery owners' rights to freedom of religion and freedom of expression, under articles 9 and 10 of the European Convention on Human Rights (ECHR) respectively.

The District Court found that Mr Lee's request was refused not because of his sexual orientation; but because of the bakery's religiously motivated opposition to same-sex marriage. However, the District Judge considered support for gay marriage to be "indissociable" from sexual orientation, and that therefore the actions of the bakery were discriminatory. The Northern Ireland Court of Appeal upheld the decision, albeit for different reasons. Neither court thought it necessary to consider the compatibility of the relevant legislation with the bakery owners’ rights under articles 9 & 10.

Supreme Court Ruling – Sexual Orientation

The Supreme Court overturned the finding that Mr Lee had been discriminated against on the grounds of his sexual orientation. While the logic of the District Court was correct – in recognising that the motivation for cancelling the order was the bakery's opposition to the concept of gay marriage; not Mr Lee's sexual orientation – the conclusion that this amounted to unlawful discrimination was incorrect.

The District Court's choice of comparator was scrutinised by the Supreme Court. The District Judge compared Mr Lee's request for a cake to the request of a person of a different sexual orientation (heterosexual) who asked for a different message ("support heterosexual marriage"). This is a fundamental misunderstanding of the principle of comparability in discrimination law: the intention is for the comparator to be identical to the complainant in all material respects, other than the protected characteristic. Therefore, the correct comparator would be a heterosexual male requesting a cake with the message "support gay marriage". It seems clear that Ashers would not have supplied the cake to such a comparator – their "objection was to the message, not the messenger".

Accordingly, "this was a case of associative discrimination or it was nothing". This is a concept which arises where the reason for the less favourable treatment is not the protected characteristic itself, but some proxy for it. The question of whether support for same sex marriage was "indissociable" from sexual orientation had been considered in detail at national level, where it was decided that it was. The Supreme Court held that the national courts had erred in making this decision, recognising that people of all sexual orientations can support gay marriage – therefore, it cannot possibly be a proxy for homosexuality.

Supreme Court Ruling – Political Belief

The Supreme Court also disagreed with the District Court’s decision that Mr Lee was discriminated against on the grounds of his political belief in same-sex marriage. The Court drew a distinction between objecting to a customer’s political opinion supporting gay marriage, and objecting to promoting to that political opinion by icing it onto a cake.

However, the Court was again required to consider the issue of whether Mr Lee's political beliefs and the political message that he wished to promote are "indissociable". The Supreme Court recognised that there is a much closer association between the message and Mr Lee's political opinion than there was between the message and Mr Lee's sexual orientation. The Court expressed doubt that this was sufficient to establish discrimination against Mr Lee, but acknowledged the possibility.

Consequently, the Supreme Court considered the bakery owners' article 9 & 10 rights. Ultimately, it was the view of the Court that the bakery should not be obliged to supply a cake displaying a message with which they profoundly disagreed. Accordingly, in order to protect their rights under the ECHR, relevant legislation "should not be read or given effect in such a way as to compel providers of goods, facilities and services to express a message with which they disagree, unless justification is shown for doing so".

Comment

This decision has been particularly newsworthy and controversial – the circumstances call to mind the decision of the Supreme Court in Bull v Hall & Preddy [2012], whereby a B&B's refusal to provide a room for a gay couple was deemed to be discriminatory on the grounds of sexual orientation. On the face of it, it seems difficult to see how these two decisions can be reconciled.

The Supreme Court, however, have clearly differentiated the "gay cake" case. In Bull v Hall & Preddy, the complainants were denied a room on the basis that they were not a married couple (at a time when 'marriage' was reserved for heterosexuals). In the instant case, however, "the less favourable treatment was afforded to the message, not to the man".

Despite this, the judgment was largely facts based, and the Supreme Court shied away from laying down a test as to when service providers are able to fall back on the defence that they were objecting to "the message, not the messenger". As a result, this judgment has sadly done nothing to clarify a difficult area of discrimination law.