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Freedom of expression over discrimination: the gay cake row22nd October 2018 Employment
With a nation that has an obsession with the Great British Bake-Off, it is no wonder that a cake related story has received such widespread media attention. This follows the much publicised Supreme Court ruling that a bakery chain in Northern Ireland did not directly discriminate on the grounds of sexual orientation, nor did it directly discriminate on the grounds of religion or political belief for refusing to supply a cake with the slogan “Support Gay Marriage„. The Lee v Ashers Baking Company Ltd case shows the conflict between religious freedoms and sexual orientation and it is far from a straightforward example of discrimination in action.
Mr Lee was a gay man that volunteered with an LGBT community group who placed an order with Ashers Bakery for a cake with an image of Bert and Ernie from Sesame Street and the headline “Support Gay Marriage„. The owners of the bakery were Christians who held the belief that marriage can only be between a man and a woman. Although Ashers initially accepted the order, they consequently rejected it on the basis that they felt they were unable to print the slogan which Mr Lee had requested. They apologised to Mr Lee and he was given a full refund.
Mr Lee brought a claim for discrimination on the grounds of sexual orientation and direct discrimination on the grounds of religious/political belief. His sexual orientation discrimination claim was initially upheld. The bakery’s appeal was rejected by the Northern Ireland Court of Appeal but succeeded in the Supreme Court.
Lady Hale, the leading discrimination law justice in the Supreme Court commented that just because the reason for less favourable treatment has something to do with the sexual orientation of some people, does not mean that the less favourable treatment is on the grounds of sexual orientation. The bakery would have supplied Mr Lee with a cake without the message “Support Gay Marriage„ and they would have refused to supply a cake with the same message requested by a heterosexual couple. The refusal to supply the cake was to the message not the messenger.
What helped Ashers was they employed and served gay people and treated them in a non-discriminatory way. There was no finding that the reason for refusing to supply the cake was that Mr Lee was thought to associate with gay people. The reason for the refusal was their religious objection to gay marriage. Support for same sex marriage was not associated with sexual orientation of the individual. People of all sexual orientations supported gay marriage and being a supporter was not a proxy for a particular sexual orientation.
With regards to discrimination on the grounds of religious belief or political opinion it was necessary to engage human rights issues. The Supreme Court considered the bakery owner’s rights under Article 9 and 10 of the European Convention of Human Rights and found that the bakery could refuse to provide Mr Lee with a cake with a message which they profoundly disagreed with.
Lady Hale makes it clear in the judgement that the bakery could not refuse to provide a cake or any other products to Mr Lee because he was a gay man or supported gay marriage. If it was found that the reason for the refusal had been connected with Mr Lee’s sexual orientation then the appeal would not have been successful. This matter was entirely different from being required to supply a cake with a message which they profoundly disagreed with. On the facts, this case created a conflict between freedom of expression and religious freedoms and LGBT rights.
The case has left some uncertainty around the extent to which a service provider can rely on the idea that they are objecting to the message and not the messenger. To what extent could a baker of wedding cakes lawfully refuse to bake a cake for a same-sex wedding? If the cake had no particular features identifying it as being a same-sex wedding, the bakers would have no argument. However, if the request was to decorate the cake with two male figures in an embrace, would the bakers be able to refuse on the ground they object, to the idea of a same sex marriage and not to the sexual orientation of the couples in question?