THE RECENT DECISION in what became known as the ‘gay cake case’ has given rise to much debate and anger, which in some instances has stemmed from a misunderstanding of what the UK Supreme Court actually decided in the Lee v Ashers Baking Co Ltd case.
Indeed, my first reaction to hearing of the outcome was utter disappointment. However, on reading the judgment itself, the complexity of the issues became clear. The court endeavours to reach a fair balance between competing rights and recalls the importance of freedom in a pluralistic and democratic society.
By way of brief outline of the facts, Gareth Lee ordered a cake with the message ‘Support gay marriage’ from Ashers bakery in Belfast in 2014. The McArthurs, owners of the bakery, initially took his order but subsequently cancelled it, citing their religious beliefs, and gave him a refund.
Lee brought an action in damages against the McArthurs for discrimination. The district judge found in his favour and on appeal, the Northern Ireland Court of Appeal held that there had been direct discrimination on grounds of sexual orientation and that it was not necessary to interpret the legislation in a different manner in order to take account of the bakery owners’ beliefs.
How the court came to its decision
The McArthurs appealed to the UK Supreme Court. This court considered three principal issues:
- Did the McArthurs’ action in refusing to make a cake with this message amount to unlawful discrimination on grounds of sexual orientation?
- Did it amount to unlawful discrimination on grounds of political opinion?
- If the answer to either of these was yes, what was the impact of the McArthur’s rights to freedom of thought, conscience and religion and freedom of expression?
Discrimination law requires a comparator: unlawful discrimination arises where a person is treated less favourably than the comparator by reason of a protected characteristic. For example, in respect of the sexual orientation ground, this would be treating a homosexual or bisexual person less favourably than a heterosexual person.
On the facts of this case, the McArthurs had made cakes for Lee in the past and would have supplied him with a cake without the message ‘Support gay marriage’. They would also have refused to supply a cake with that message to a heterosexual customer.
There was as such no direct discrimination against Lee personally on the grounds of his sexual orientation, as they would have treated all customers in the same way.
Distinguishing the recent US Supreme Court ‘Masterpiece Bakery case’, the UK Supreme Court found that there was a clear distinction between refusing to produce a cake conveying a particular message, for any customer who wanted such a cake, and refusing to produce a cake for the particular customer who wanted it because of that customer’s characteristics (a wedding cake for a gay marriage in that case).
The court continued to consider another form of discrimination: direct discrimination by way of association. This required a finding that the reason for refusing to supply the cake was that Lee was likely to associate with the gay community of which the McArthurs disapproved.
Again, the facts of the case did not support such a finding. The evidence was that the McArthurs both employed and served gay people and treated them in a non-discriminatory way.
There was no evidence that the reason for refusing to supply the cake was that Lee was thought to associate with gay people. The reason was their religious objection to gay marriage.
Competing rights
Lady Hale, the president of the UK Supreme Court, stressed that “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. 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.”
Considering the political opinion ground, the political context was of some relevance. A motion in support of enabling same sex couples to get married in Northern Ireland had been narrowly rejected by the Northern Ireland Assembly on 29 April 2014. There was ongoing debate and strongly held views on both sides of this campaign.
The court found that while there was again no less favourable treatment on this ground, because anyone else would have been treated in the same way, there was a much closer association between the political opinions of the man and the message that he wished to promote, such that it could be argued that they were “indissociable”. How then was the court to balance Lee’s right to non-discrimination on the ground of political opinion as against the McArthurs’ rights to freedom of thought, conscience and religion and freedom of expression?
The right to hold a religious belief comes with the right not to hold such a belief. The right to freedom of expression comes with the right to refuse to express any particular views. The court recalled that these freedoms are at the core of a pluralistic, democratic society, “which has been dearly won over the centuries.”
The implications
The court emphasised that the bakery could not have refused to provide a product to Gareth Lee because he was a gay man or because he supported gay marriage. But that important fact did not amount to a justification for something completely different – obliging them to supply a cake iced with a message with which they profoundly disagreed.
Considering, for a moment, the implications of having decided otherwise – this would have meant that in a potential future scenario on the opposite side of the coin, a publishing company, for example, run by individuals with strong views in favour of gay marriage would be obliged, on pain of liability in damages, to print leaflets with the message “stop gay marriage” on request. This judgment protects their right to refuse to do so.
Even given the considerably different context of a constitutionally protected right to gay marriage in the Republic of Ireland, it is hard to see how courts in this jurisdiction, with the same facts before them, could reach a different conclusion in terms of what is required by discrimination law and how the various rights involved should be balanced.
Aoife McMahon is a published author and practising barrister, specialising in human rights law.
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