Not the latest cupcake, popcake, cronut or yumdough! But the case of Gareth Lee v Ashers Baking Co Ltd & Colin McArthur Ltd & Karen McArthur Ltd heard in the High Court of Belfast last month. This case has received a good deal of media attention. The judgment was handed down in the same week as the Republic of Ireland legalised same sex marriage, leaving Northern Ireland as the last part of these isles which does not allow a man to marry another man or a woman to marry another woman.
Gareth Lee is is a gay rights campaigner who happens to be gay himself. Ashers Baking Co Ltd is a bakery, based in Newtownabbey, County Antrim.
The bakery had a leaflet which mentioned that they produced bespoke cakes, there was no mention of any restrictions.
Mr Lee, having previously bought items from the bakery, ordered a cake for £35. He requested that the cake was decorated with the phrase “Support gay marriage” and “Queer Space born 1998” and also with a picture of the two Disney muppet characters Bert and Ernie. The cake was for a civic event in Bangor, County Down, to mark International Day Against Homophobia and Transphobia.
The bakery initially accepted Mr Lee’s request but later declined it as they said that it is a Christian business and that in hindsight, the message on the cake was “at odds with” their “beliefs and with what the Bible teaches” and that they “could not stand before God” and produce a cake supporting same-sex marriage.
Mr Lee was offered a refund and an apology that they would not take his order. He found another baker to make the cake, but wrote a letter of complaint as he felt discriminated against because of his sexuality and his views and said that he was not asking them to support his views but to provide the service that he had paid them to do.
Mr Lee approached the Equality Commission who assisted him in bringing a civil action against the bakers, his claim alleged that the bakery had breached its statutory duty not to discriminate on the grounds of sexual orientation.
The bakery (with the assistance of the Christian Institute, which provided legal assistanceand by the Democratic Unionist Party (DUP), particularly Northern Ireland First Minister, Peter Robinson, who led the opposition at the Northern Ireland Assembly to the Equality Commission’s case) decided to defend the claim as it said that it was “taking a stand” on the grounds of religious freedom.
The Legal Arguments
The issue for the Court was whether there had been any direct or indirect discrimination on the grounds of sexual orientation, political opinion, or religious belief.
If the Court decided that there had been discrimination then it had to decide whether the relevant provisions of the Equality Act (Sexual Orientation) Regulations (Northern Ireland) 2006 (2006 Regulations) or the Fair Employment and Treatment (Northern Ireland) Order 1998 (1998 Order), should be read down so as to take account of the Defendants protected rights to manifest their religious belief in accordance with Article 9 ECHR or their freedom of non-expression under Article 10 ECHR. (In the UK, this would have been argued under the Equality Act 2010).
The bakery argued that it would have supplied the cake to Mr Lee absent the message promoting same-sex marriage and it would have refused a heterosexual or bisexual customer who requested a cake with the same message. It argued that the reason the order was refused because of the baker’s religious belief that it would be sinful for him to promote a definition of same-sex marriage.
The case was heard in the Belfast County Court by Judge Brownlie and her decision was that the bakery was not a religious organisation; it was conducting a business for profit notwithstanding its genuine religious beliefs.
Same-sex marriage is or should be regarded as a union between persons having a sexual orientation and that if a person refused to provide a service on that ground then they were discriminating on grounds of sexual orientation.
On the evidence, the baker did have the knowledge or perception that Mr Lee was gay and/or associated with others who are gay. As much as the Court acknowledged fully the baker’s religious belief was that gay marriage is sinful, it is in a business supplying services to all, however constituted. The law requires them to do just that, subject to the graphic being lawful and not contrary to the terms and conditions of the company. The baker was guilty of direct discrimination and there is no defence to this.
The Judge also found that Mr Lee’s support of gay marriage was, in fact and law, a political opinion held by him and therefore also protected. The baker was also guilty of direct discrimination on the grounds of a belief. The holding and/or manifestation of a belief are so interlinked that it is illogical to suggest that they can be separated
The Judge noted that the baker was entitled to hold and manifest its religious beliefs but in accordance with the law.” To do otherwise “would be to allow religious belief to dictate what the law is”.
It is evident that no matter which side of the case one supports, it cannot be denied that this decision is pivotal and is part of a line of cases which deal with the competing freedoms of religion and belief and sexual orientation. It seems likely that the case will be appealed.
However, it has also created an unusual situation, where both the Equality Commission and the Court have deemed that acting contrary to the views of people who believe in same-sex marriage is worthy of protection, yet same-sex marriage remains illegal in Northern Ireland.
Additionally, the reactions to the case show that whilst the decision is clearly a victory for equality, it can equally be viewed as an attack on the freedom of conscience. Many argue that people should be free to run their businesses in a way that is in accordance with their beliefs. The journalist Simon Jenkins, considers this point in his article about the gay cake case. He states that most people would agree that the law should not suppress belief, but that it should suppress manifestations of that belief that harm others. American Judge Oliver Wendell Holmes that says “the right to swing my fist ends where the other man’s nose begins” to demonstrate this point.
It will therefore be interesting to see what effect the ‘gay cake’ decision has on the DUP’s plans to implement a Private Member’s Bill seeking to build a conscience clause into the law. The proposed conscience clause would be based on the US notion of ‘reasonable accommodation’, recognising that there are rights on both sides. These reforms would seek to allow businesses to refuse to provide services if they clash with their religious beliefs, which could cause ever more discriminatory scenarios than the facts in the above case, such as adoption agencies refusing to deal with gay couples.
The gay cake decision follows Bull v Preddy & Hall UKSC 73. In fact Judge Brownlie referred to Lady Hale’s reasoning when delivering her judgment. In both cases it was held that there had been direct discrimination, but that if they had not reached this finding, they would have found that there had been indirect discrimination. They both said that Defendants’ Article 9 rights could be interfered with, as the limits placed on them, are a proportionate means of achieving the legitimate aim of protecting the rights and freedoms of the claimants.
However, some argue that the gay cake case facts go beyond the mere refusal to provide a service (a B&B service in the Bull v Preddy & Hall case). It could be argued that the claimant in the gay cake case, was asking the baker to engage in a political argument, so the baker’s refusal to produce the cake with a message against his beliefs was more justified. If the baker had refused to sell any cake, even without the message on top, to anyone on the basis of their sexual orientation this would have been a more obvious act of discrimination and less obviously justifiable. However, Judge Brownlie clearly articulated that in her view, Mr Lee was simply asking the baker to provide a service, so the above argument would fail on this point.
This case will no doubt continue to pique the interest of discrimination lawyers and the public alike. Time to put our feet up, make a cup of tea, read about the gay vicar’s case in Nottingham tribunal…cake anyone?