The Supreme Court has held in the decision Lee v Ashers Baking Company Ltd that a bakery, owned by Christians, did not discriminate against a customer on the ground of sexual orientation by refusing to make a cake with a slogan supporting same-sex marriage.
Mr Lee, who is gay, ordered a cake with the message “Support Gay Marriage” and a picture of the Sesame Street characters Bert and Ernie. The owners of the bakery, who are Christians, cancelled the order and informed Mr Lee the order would not be completed as the bakery was a “Christian business”. Mr Lee was given a refund and subsequently brought a discrimination claim.
At first instance, Mr Lee succeeded in his claim for direct discrimination which was then upheld by the Northern Ireland Court of Appeal. The Court of Appeal held that this was a case of associative direct discrimination in relation to sexual orientation as the benefit of the message on the cake could only apply to gay or bisexual people; the bakery would not have cancelled the order if the cake had the message “Support Heterosexual Marriage”. Therefore, Mr Lee was discriminated against by association with the gay community and the protected characteristic was the sexual orientation of that community. The Court of Appeal also held that the bakery owners’ rights under Article 9 European Convention on Human Rights (“ECHR”) (freedom of thought, conscience and religion) and Article 10 ECHR (freedom of expression) had not been infringed. If businesses were free to choose what services to provide to certain communities, this would amount to direct discrimination. The court also stated that the bakery owners’ were not being asked to express personal support or endorsement for the message on the cake.
The Supreme Court looked at direct discrimination on grounds of both sexual orientation and political beliefs and overruled the Court of Appeal’s decision. The Supreme Court held that the bakery owners’ refusal was not because of Mr Lee’s sexual orientation, the objection was to the message on the cake. Therefore it was not direct discrimination. It was also held that there was not associative discrimination; support for gay marriage is not a proxy for any particular sexual orientation as people of all sexual orientation can support gay marriage. The Supreme Court also ruled on political belief and held that Articles 9 and 10 of the ECHR allow the entitlement not to be forced to declare an opinion which you do not hold. Articles 9 and 10 ECHR were not infringed as the bakery owners’ were justified in refusing to supply a cake with a message to which they profoundly disagreed.
The full judgment can be read here: https://www.bailii.org/uk/cases/UKSC/2018/49.html