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Bakers' appeal allowed in “gay cake” case

10 October 2018

The Northern Ireland couple who refused an order for their family bakery to decorate a cake with the message “Support Gay Marriage” have won an appeal against a ruling that they discriminated on the grounds of sexual orientation against the person placing the order.

Five judges in the UK Supreme Court unanimously held that Daniel and Amy McArthur did not discriminate against Gareth Lee, a gay man and gay rights activist, who attempted to place the order with the Ashers bakery business that they ran. They declined the order on the basis that they were Christians who believed that the only form of marriage consistent with biblical teaching was that between a man and a woman.

Mr Lee, supported by the Equality Commission for Northern Ireland, brought a claim for direct and indirect discrimination on grounds of sexual orientation, contrary to the Equality Act (Sexual Orientation) Regulations (Northern Ireland) 2006 (SOR) and/or on grounds of religious belief or political opinion, contrary to the Fair Employment and Treatment (Northern Ireland) Order 1998 (FETO). The district judge in the county court held that refusing to complete his order was direct discrimination on all three grounds. The Court of Appeal dismissed the McArthurs’ appeal, holding that Mr Lee had suffered direct discrimination on grounds of sexual orientation and that it was not necessary to interpret the SOR to take account of the McArthurs’ human rights under the European Convention.

Lady Hale, with whom Lord Mance, Lord Kerr, Lord Hodge and Lady Black agreed, ruled that in relation to the sexual orientation claim, the district judge found that the appellants did not refuse to fulfil Mr Lee’s order because of his actual or perceived sexual orientation – their objection was to the message on the cake, not any personal characteristics of the messenger, or anyone with whom he was associated. Support for gay marriage was not a proxy for any particular sexual orientation, and the benefit of the message did not accrue only to gay or bisexual people, but to their families and friends and the wider community who recognised the benefits of such commitment. Thus, there was no discrimination on grounds of sexual orientation in this case.

Lady Hale commented: "In reaching the conclusion that there was no discrimination on grounds of sexual orientation in this case, I do not seek to minimise or disparage the very real problem of discrimination against gay people... Experience has shown that the providers of employment, education, accommodation, goods, facilities and services do not always treat people with equal dignity and respect, especially if they have certain personal characteristics which are now protected by the law. It is deeply humiliating, and an affront to human dignity, to deny someone a service because of that person’s race, gender, disability, sexual orientation or any of the other protected personal characteristics. But that is not what happened in this case and it does the project of equal treatment no favours to seek to extend it beyond its proper scope."

Regarding political or religious belief, protection against direct discrimination had constitutional status in Northern Ireland. The discrimination had to be on the ground of the religion or belief of someone other than the alleged discriminator. As the appellants’ objection was not to Mr Lee, but to being required to promote the message on the cake, the situation was not comparable with people being refused jobs or services simply because of their religious faith.

It was arguable that the message was indissociable from Mr Lee’s political opinion. However, considering the impact of the McArthurs’ ECHR rights on the meaning and effect of FETO, the rights to freedom of thought, conscience and religion under article 9 and to freedom of expression under article 10 included the right not to be obliged to manifest beliefs one did not hold. The McArthurs could not refuse to provide their products to Mr Lee because he was a gay man or because he supported gay marriage, but that was different from obliging them to supply a cake iced with a message with which they profoundly disagreed. FETO should not be read or given effect in such a way as to compel them to do so unless justification was shown, and it had not been in this case.

A separate issue for the Supreme Court was whether Court of Appeal should have made a reference to the Supreme Court under para 33 of sched 10 to the Northern Ireland Act 1998. The Court of Appeal concluded that a requirement to do so by the Attorney General for Northern Ireland had come too late as the proceedings had ended. The court unanimously held that it had jurisdiction to hear an appeal against this aspect of the Court of Appeal’s judgment as well, and that that the court had erred in refusing to make a reference. In this context it was natural to regard the proceedings as live until a final order was issued.


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