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Baker's refusal to bake gay marriage cake not direct discrimination

A Christian bakery's refusal to bake a cake iced with a message supportive of same sex marriage was not direct discrimination, the UK's highest court has ruled.11 Oct 2018

The Supreme Court, in a unanimous judgment, found that the bakers' decision was based on the wording of the slogan on the cake and not on the sexual orientation of their prospective customer, Gareth Lee. The decision was therefore not direct discrimination in the ordinary sense. The court also overturned the decision of two lower courts and ruled that it could not be 'associative' direct discrimination, as support for same sex marriage is not limited to those in the gay community.

The court also had to consider whether Lee's support for same sex marriage was instead protected as a 'political' belief and, if so, the extent to which the bakers' rights under the European Convention on Human Rights (ECHR) to freedom of religion and freedom to not express a political opinion with which they did not agree came into play. It ruled that infringement of those rights could not be justified by the obligation to supply the cake.

Employment law expert Stuart Neilson of Pinsent Masons, the law firm behind Out-Law.com, said that although "on one level the decision is one that does provide a degree of clarity to the facts of this particular case", it was "highly unlikely to be the last word in the contentious area of clashing rights".

"On the facts, the decision by the bakery not to make the cake with its message in support of gay marriage was a decision taken because of the message and not because of Mr Lee's sexual orientation," he said. "It could not be direct discrimination on that basis. Where you get into slightly greyer areas is whether it was 'associative direct discrimination' in the sense that you could not separate the message from the sexual orientation of Mr Lee. The Supreme Court has taken the view that as the message was one many people of different sexual orientations might support it could not be said that there was a sufficiently close connection to bring this into the ambit of an associative direct discrimination claim."

"However, while we now have some clarity around the freedom of those providing services to resist the requirement to message views that they do not support, there will no doubt be other cases where the facts are not quite so straightforward and where it may be more difficult to disassociate the message from the customer and their orientation or religious beliefs," he said. "The decision of the Supreme Court that insofar as Mr Lee was expressing a 'political view' that his right to do so could not override the rights of the owners of the bakery to freedom of thought, conscience and religion under Article 9 of the ECHR is likely to be founded upon in future cases where there is a clash between those seeking to uphold discrimination law rights and those seeking to uphold their right to hold or manifest religious belief. This case adds some clarity to this clash of rights issue, but by no means provides all the answers."

The dispute dates back to 2014 when Lee, a gay man who volunteers with Belfast-based LGBT community group QueerSpace, ordered a cake from an Ashers Baking Company shop, asking that it be decorated with a picture of the Sesame Street cartoon characters Bert and Ernie and the slogan 'support gay marriage'. Amy McArthur, who runs Ashers with her husband and family, phoned Lee the following Monday to inform him that the company could not fulfil the order because Ashers was a Christian business and the slogan was at odds with the family's religious beliefs.

The district judge at the original trial made no finding that the order was cancelled because of Lee's sexual orientation. The McArthurs' objection was "to the message, not the messenger". The Supreme Court agreed that support for gay marriage is "not a proxy for any particular sexual orientation". There was "no evidence that the bakery had discriminated on that or any other prohibited ground in the past", as well as evidence that the shop both employed and served gay people and treated them in a non-discriminatory way.

The Supreme Court also agreed that support for same sex marriage in Northern Ireland was a protected political opinion, given the nature of the debate in Northern Ireland at the time. It found that there was a "much closer association" between Lee's political opinions and the message on the cake than there was between his sexual orientation and the message. However, given the bakers' competing rights, they could not be compelled to express "a message with which they disagree, unless justification is shown for doing so".

"It is, of course, the case that businesses offering services to the public are not entitled to discriminate on certain grounds," said Supreme Court president Lady Hale, giving the judgment of the court. "The bakery could not refuse to provide a cake - or any other of their products - to Lee because he was a gay man or because he supported gay marriage."

"But that important fact does not amount to a justification for something completely different – obliging them to supply a cake iced with a message with which they profoundly disagreed. In my view they would be entitled to do that whatever the message conveyed by the icing on the cake – support for living in sin, support for a particular political party, support for a particular religious denomination. The fact that this particular message had to do with sexual orientation is irrelevant," she said.

The judge added that the judgment was not intended to "minimise or disparage the very real problem of discrimination against gay people".

"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," she said. "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."