The owners of a Christian bakery refused to ice a cake with the slogan “Support Gay Marriage” because they believed that the message conflicted with Biblical teaching. The Supreme Court held that this was not discrimination on grounds of sexual orientation: the objection was to the message, and the same cake would have been refused to any customer. If the refusal was capable of amounting to discrimination on grounds of political opinion, the legislation could not be applied so as to compel the owners to express a view they did not hold.
Ashers was a commercial bakery that offered a service decorating cakes to customers’ specifications. Its owners objected on religious grounds to expressing support for same-sex marriage.
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Mr Lee ordered a cake for an event and asked the bakery to reproduce a campaign design.
The bakery initially accepted payment but subsequently cancelled the order and refunded Mr Lee. The owners explained that they could not make a cake carrying the requested words.
The claims below
With support from the Equality Commission for Northern Ireland, Mr Lee claimed discrimination in the provision of goods, facilities or services. Two Northern Ireland measures were involved. The Equality Act (Sexual Orientation) Regulations (Northern Ireland) 2006 prohibit discrimination on grounds of sexual orientation. The Fair Employment and Treatment (Northern Ireland) Order 1998 prohibits discrimination on grounds of religious belief or political opinion.
On 19 May 2015 the district judge held that cancelling the order was direct discrimination on all three grounds, that the legislation was compatible with the owners’ rights under the European Convention on Human Rights, and that Mr Lee should receive the agreed sum of £500. It was common ground before the Supreme Court that the case was one of direct discrimination or nothing.
The trial judge accepted that the owners opposed the message and held that cancelling the order was unlawful. That distinction between the reason for the refusal and its effect on Mr Lee became central on appeal.
The bakery and its owners appealed by case stated. On 24 October 2016 the Northern Ireland Court of Appeal dismissed the appeal. It held that there was associative direct discrimination on grounds of sexual orientation and that the sexual-orientation regulations did not need to be read down to take account of the owners’ Convention rights. It discussed, but did not decide, the religious and political claims.
Jurisdiction
A Court of Appeal decision on a case stated is normally final. There is an exception where the case involves the validity of a provision made by or under an Act of the Northern Ireland Parliament or a Measure of the Northern Ireland Assembly. The 1998 Order counted as such a Measure. The 2006 regulations, made under an Act of the United Kingdom Parliament, did not.
The Attorney General sought a reference about the compatibility of the legislation with the owners’ Convention rights. The Court of Appeal declined to refer the questions.
Lord Mance, with whom Lady Hale, Lord Kerr, Lord Hodge and Lady Black agreed, held that the Supreme Court had jurisdiction. The bakery’s fallback case, and the Attorney General’s argument, raised a question about the validity of the 1998 Order. That was enough to permit an appeal even though invalidity would arise only if every other argument failed. Proceedings remained alive until the order was finalised, so the request for a reference had been made in time. Refusing it was a procedural error. That error meant an appeal could also be brought on the sexual-orientation claim. The Court gave permission because the questions were of general public importance in Northern Ireland and elsewhere in the United Kingdom.
Sexual orientation
Lady Hale gave the judgment of the Court on the substance, with the agreement of the other Justices. Direct discrimination is treating someone less favourably than others on grounds of sexual orientation. Here the reason was the requested message. Anyone wanting that message would have been treated alike, and treating people in the same way is not direct discrimination.
The district judge had compared Mr Lee with someone of a different sexual orientation who wanted a cake supporting heterosexual marriage. That was the wrong comparison. The regulations require the circumstances to be the same, or not materially different. The relevant circumstance was the cake requested.
Support for same-sex marriage was not a proxy for the customer’s sexual orientation. The Court distinguished situations where the criterion used by the defendant corresponded exactly to a protected characteristic, such as a retirement age that differed for men and women, or a restriction to married couples at a time when only heterosexual couples could marry. People of every sexual orientation can and do support gay marriage.
The Court of Appeal had relied on association with the gay community. The Supreme Court held that the required connection was missing. Customers of any sexual orientation could support the campaign, and Ashers would have refused the same message whoever asked for it.
Political opinion and compelled expression
The Court accepted that support for same-sex marriage was a political opinion.
Liability for political discrimination could not be established simply by showing that the business owners acted from their own religious beliefs. The court examined whether Mr Lee had been treated adversely on grounds of political opinion and how the legislation interacted with freedom of expression.
The McArthurs knew from the slogan that he supported gay marriage. Even so, Lady Hale considered that the objection was to promoting the message, not to the man. They were willing to serve him in other ways. This was unlike refusing employment, accommodation or goods generally because of someone’s opinion. It was closer to requiring a Christian printer to print leaflets promoting an atheist message.
Article 9 protects freedom of thought, conscience and religion, including freedom not to hold or manifest a belief. Article 10 protects freedom of expression, including the freedom not to express an opinion. Domestic and Strasbourg authority already established that nobody should be forced to hold or express a religious or political opinion in which that person does not believe. The principle was not confined to the United States Constitution.
The owners’ objection was to producing a cake carrying particular words. The statutory protection of customers had to be considered alongside articles 9 and 10, including freedom from being compelled to express an opinion.
These rights can be limited where that is lawful and necessary in a democratic society. A business serving the public cannot refuse a cake, or any other product, because the customer is gay or supports gay marriage. That did not justify compelling Ashers to ice a message with which its owners profoundly disagreed. Lady Hale considered that they could refuse whatever the message was, including support for living together outside marriage, a political party or a religious denomination. The fact that this message concerned sexual orientation was irrelevant to the political claim.
Legislation must so far as possible be read compatibly with Convention rights. Even if the refusal might otherwise have been discrimination on grounds of political opinion, the 1998 Order should not be given effect so as to compel providers to express a disagreed message unless justification is shown. None was shown.
The Court did not hold that the company itself has rights under article 9. Making the company liable while the McArthurs were not would nevertheless have negated their rights, so the company was not liable either.
Verdict: The Court unanimously granted permission and allowed the bakery and its owners’ appeal on both claims. Refusing this message did not constitute sexual-orientation discrimination. The legislation did not compel them to express the political opinion in the requested words. The constitutional-validity questions did not require an answer.
Source: Lee v Ashers Baking Company Ltd and others [2018] UKSC 49
