There has been plenty of commentary, including in the popular press, about the so-called ‘gay cake’ case. The Supreme Court has now reached its decision. In this short update, we summarise the facts of the case and the Supreme Court’s decision.
Ashers Baking Company Ltd is a bakery in Northern Ireland. Two of its directors are Christian and oppose same-sex marriage. In 2014 a gay man, Mr Lee, ordered a cake from the bakery to be iced with a coloured picture of two cartoon characters (Bert and Ernie), the logo for the LGBT organisation he volunteered with, and the message “Support Gay Marriage”. The order was placed and paid for by Mr Lee. The following week, however, the order was cancelled and the bakery provided Mr Lee with a full refund. The explanation provided by one of the bakery’s directors was that the business was a Christian business and could not print the slogan requested by Mr Lee.
Mr Lee brought claims for discrimination on the grounds of sexual orientation and religious belief or political opinion in a county court in Northern Ireland. Both claims were upheld. Whilst the county court found that the order had not been cancelled because of Mr Lee’s sexual orientation, but rather the message on the cake, it considered that support for gay marriage was indissociable from sexual orientation.
The bakery appealed to the Northern Ireland Court of Appeal, which dismissed the bakery’s appeal. The bakery subsequently appealed to the Supreme Court.
The Supreme Court Decision
The Supreme Court considered both types of discrimination being alleged by Mr Lee.
In its unanimous judgment, the Court considered that the bakery’s refusal to provide the cake was not because of Mr Lee’s actual or perceived sexual orientation. The objection was to the message on the cake in support of gay marriage and individuals of all sexual orientations could support gay marriage.
Given the above, the Court held that Mr Lee had not been directly discriminated against – the bakery’s objection being to the message on the cake, not the messenger. Anyone who wanted the message “Support Gay Marriage” iced on a cake would have been treated in the same way by the bakery. Direct discrimination, the Court noted, is about treating people differently. The Court further considered that associative discrimination was not made out on the facts. The message requested by Mr Lee might not only benefit gay or bisexual people, but also their friends, families and the wider community.
Regarding political belief discrimination, the Court considered the domestic legislation in Northern Ireland in light of the European Convention on Human Rights (the ECHR). Whilst the bakery could not, lawfully, refuse to provide Mr Lee with their products because he was a gay man or because he supported gay marriage, they were not obliged to supply a cake iced with a message with which they profoundly disagreed (unless justification was shown for doing so).
Ultimately, the bakery’s appeal to the Supreme Court was successful because their objection was found to be to the message and not to any particular person or persons.
Whilst this case concerned the provision of goods - a cake - it raises interesting questions about potential conflicts in the workplace where employees hold different beliefs. In particular, it raises questions about the closeness of any connection needed in order to succeed with an associative discrimination claim. The case does not, however, set out any definitive test for associative discrimination. Accordingly, there remains uncertainty in this regard – just how close does any connection need to be in order for there to be associative discrimination?