Case Summary and Outcome
The UK Supreme Court held that anti-discrimination laws in Northern Ireland couldn’t be read as compelling providers of products, facilities, and services to precise a message with which they disagree, unless justification is shown for doing so. This case concerned a local business, Ashers Bakery, which had refused to take an order from a gay man for a cake that read “Support Gay Marriage”. The person who asked for the cake, Mr. Lee, successfully brought discrimination claims before the courts in Northern Ireland on the idea that he had been discriminated against on grounds of his sexual orientation, political opinion or religion. The Supreme Court disagreed with the lower courts, reasoning that the bakery would have refused to provide this cake to anyone, whatever their personal characteristics. Therefore, there was no discrimination on grounds of sexual orientation. To the extent to which there was discrimination on the idea of political opinion, the Court found no justification for compelling the bakery’s speech during this case.
The case concerned Gareth Lee, a shirt lifter who volunteered with a corporation that worked with the LGBT community in Belfast, Northern Ireland. In May 2014, Mr. Lee visited a bakery called Ashers Bakery and placed an order for a customized cake. The cake was for an occasion to mark the top of “Northern Ireland Anti-Homophobic Week” and to further support the legalization of gay marriage within the country. He specifically asked the bakery to embellish the cake with the organization’s logo alongside the caption “Support Gay Marriage”.
Mr. and Mrs. McArthur, who ran the bakery, were Christians who sincerely believed that
(a) the sole sort of full sexual expression which is according to the Bible is that between a man and a lady within marriage, and
(b) the sole sort of marriage according to the Bible was that between a person and a lady. They both sought to run the bakery in accordance with their beliefs, but this wasn’t advertised anywhere. Mr. Lee was also not conscious of this and he couldn’t find any leaflet or advertising warning him of spiritual or political restrictions on customized cakes. Days after Mr. Lee made the order, the McArthurs contacted Mr. Lee and informed him that his order could not be accepted because their shop was a “Christian business” and they could not, in good conscience, make the cake.
In November 2014, Mr. Lee brought a claim against the shop and therefore the McArthurs, alleging that the refusal to finish his order had violated the Equality Act (Sexual Orientation) Regulations (NI) 2006 (SORs) and the Fair Employment and Treatment (Northern Ireland) Order 1998 (FETO). He claimed direct and indirect discrimination on grounds of sexual orientation, religion, or political opinion. The District Court of Northern Ireland held that refusing to finish the order was direct discrimination on all three grounds and awarded Mr. Lee £500.
The bakery and therefore the McArthurs appealed the ruling of the District Court to the Court of Appeal of Northern Ireland. The Court of Appeal served a devolution notice and see of incompatibility on the Attorney General, who then became a celebration to the proceedings. On United Nations Day, 2016, the Court of Appeal affirmed the District Court’s decision, holding that Mr. Lee had suffered direct discrimination on grounds of sexual orientation which it had been not necessary to interpret the SORs to require an account of the McArthurs’ rights under the European Convention on Human Rights.
The appellants then went on appeal in the Supreme Court of Northern Ireland.
Lady Hale delivered the opinion of the Supreme Court (Court). The judgment considered the sexual orientation and political opinion claims separately.
Sexual Orientation Claim
The Equality Act (Sexual Orientation) Regulations (NI) 2006 (SORs) stated that an individual discriminates against another if, on the grounds of sexual orientation, they treat that other person less favorably than he treats or would treat other people. The SORs went on to state that it had been unlawful for a person concerned with the supply of products, facilities, or services to the general public or a neighborhood of the public to discriminate against an individual who seeks to get or use those goods, facilities, or services by refusing or deliberately omitting to supply him with any of them. Mr. Lee had claimed direct discrimination under these provisions.
In reference to this claim, the McArthurs argued that the case didn’t concern the refusal to supply goods to a customer on the grounds of sexual orientation; rather they refused the idea of the slogan supporting gay marriage (i.e. it was the message and not the messenger). They argued that while support for a couple is said to sexual orientation and is supported by many individuals within the LGBT community, the very fact that the message included sexual orientation “in the mix” wasn’t enough to determine direct discrimination on the grounds of sexual orientation. Further, they said, that the District Judge erred by comparing the treatment of Mr. Lee with an individual of a special sexual orientation who wanted a special message (“support heterosexual marriage”), instead of an individual of a special sexual orientation wanting an equivalent message (“support gay marriage”).
The Court noted that the supply wasn’t limited to treating people less favorably on the grounds of the sexual orientation of that person. It was left open that an individual could also be treated less favorably due to another person’s sexual orientation, and still fall into the law. The Court of Appeal reasoned that “this was a case of association with the gay and bisexual community and therefore the protected personal characteristic was the sexual orientation of that community”. The Court rejected this argument. The evidence was that the bakery both employed and served gay people and treated them in a non-discriminatory way. There was no reason to seek out that they refused to provide the cake because they thought Mr. Lee was thought to associate with gay people. The reason was simply their religious objection to gay marriage.
The Court noted that where the rationale for less favorable treatment has something to try to do with the sexual orientation of some people, doesn’t mean that the less favorable treatment is “on grounds of” sexual orientation. Furthermore, the message in itself didn’t only benefit gay people, it accrued to the benefit for his or her families and friends.
Lady Hale went on to clarify that “In reaching the conclusion that there was no discrimination on grounds of sexual orientation during this case, I don’t seek to minimize or disparage the very real problem of discrimination against gay people. Nor do I ignore the very full and careful consideration which was given to the event of the law during this area it’s deeply humiliating, and an affront to human dignity, to deny someone a service due to that person’s race, gender, disability, sexual orientation or any of the opposite protected personal characteristics. But that’s not what happened during this case and it does the project of equal treatment no favours to hunt to increase it beyond its proper scope“.
The Court concluded that the SORs don’t , within the circumstances of this case, impose a civil liability for the refusal to precise a political opinion or express a view on a matter of public policy contrary to the religion of the person refusing to precise that view.
Political Opinion Claim
FETO had similar provisions to those in SORs on discrimination supported political opinion within the provision of products, facilities, and services. The Court found no reason to doubt that support for gay marriage was a political opinion for the aim of this case. The Court held that the less favorable treatment prohibited by FETO must get on the grounds of the religion or political opinion of somebody aside from the person meting out that treatment. The Court held that there was no less favorable treatment on the bottom of political opinion because anyone else would are treated in the same way. The Court reasoned that the objection was not to Mr. Lee because he, or anyone with whom he associated, held a political opinion supporting gay marriage. The objection was to being required to promote the message on the cake. The less favorable treatment was afforded to the message, to not the person. The Court also took under consideration the very fact that the bakery was prepared to serve him in other ways.
Nonetheless, during this case, the Court reasoned that the person ordering the cake had an in-depth association with the message on the cake. It could then be argued that they were “indissociable” for the aim of direct discrimination. The Court found it appropriate, therefore, to think about the impact of McArthur’s rights under the ECU Convention on Human Rights (Convention) upon the meaning and effect of FETO. The Court noted that the rights to freedom of thought, conscience, and religion were protected by Article 9 of the Convention and therefore the right to freedom of expression was protected by Article 10 of the Convention. The Court noted that the proper freedom of expression includes the proper to not express an opinion. Here the bakers were being required to produce a cake that would require them to express a message with which they deeply disagreed.
The Court noted that these rights under the Convention were qualified rights, which meant that companies offering services to the general public aren’t entitled to discriminate on certain grounds.
In Lady Hale’s words, “businesses offering services to the general public aren’t entitled to discriminate on certain grounds. Hence, the Asher’s Bakery couldn’t refuse to supply a cake – or the other of their products – to Mr. Lee because he was a shirt lifter or because he supported gay marriage. But that important fact doesn’t amount to a justification for something completely different – obliging them to provide a cake iced with a message with which they profoundly disagreed. they would be entitled to refuse to try to do that regardless of the message conveyed by the icing on the cake – support for living in sin, support for a selected party, support for a specific religious denomination”.
The Court concluded that FETO shouldn’t be read or given effect in such how as to compel providers of goods, facilities, and services to precise a message with which they disagree unless justification is shown for doing so.
In a postscript, the Court noted the recent judgment of the US Supreme Court in Masterpiece Cakeshop v. Colorado Civil Rights Commission and sought to differentiate the facts of that case from this one.
The Court concluded that “The important message from the Masterpiece Bakery case is that there is a transparent distinction between refusing to provide a cake conveying a selected message, for any customer who wants such a cake and refusing to supply a cake for the actual customer who wants it due to that customer’s characteristics. One can debate which side of the road particular factual scenarios fall. But in our case, there are often little questions. The bakery would have refused to provide this particular cake to anyone, whatever their personal characteristics. So there was no discrimination on grounds of sexual orientation. If and to the extent that there was discrimination on grounds of political opinion, no justification has been shown for the compelled speech which could be entailed for imposing civil liability for refusing to fulfill the order”.
This case has a mixed outcome. The judgment restricts freedom of expression by permitting viewpoint discrimination within the provision of products, services, and facilities in cases where a business owner has got to express something with which they disagree. This might make it harder for a few people to get goods or services that convey a message that they accompany (e.g. obtaining cards for gay weddings).
However, the Supreme Court also noted that such goods, services, or facilities might be compelled where there’s a sufficient justification for doing so. This will come right down to the balancing of rights in specific cases. The case also expands freedom of expression by recognizing the concept of compelled speech. In short, it recognizes that the proper freedom of expression includes the proper to not be compelled to talk against your wishes.
The decision establishes a binding or persuasive precedent within its jurisdiction.
This is a judgment of the Supreme Court of Northern Island and can have binding value on all the lower courts within its jurisdiction.
The decision was cited in:
- Navtej Singh Johar v. Union of India
OFFICIAL CASE DOCUMENTS
Official Case Documents:
- Judgment (Court of Appeal of Northern Ireland)
- Summary of Judgment (Court of Appeal of Northern Ireland)
Reports, Analysis, and News Articles:
- The Belfast Bakers and Freedom of Expression
- Gay cake’ cases show the strength of Christian right legal armies on each side of the Atlantic
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