Legal Corner: Bakers in ‘gay cake’ saga succeed in the Supreme Court

26th Oct 2018

In June 2015, I wrote in this same column about the ‘gay cake’ case that was filling the press; this month, the Supreme Court has given judgment in the long-running saga which began back in May 2014, when a gay man, Mr Lee, ordered a cake from Ashers Bakery in Northern Ireland for an event to mark anti-homophobia week. He provided a picture with the words ‘Support Gay Marriage’ underneath which he wanted to be iced onto the cake.

The Directors of Ashers Bakery, Mr and Mrs McArthur, were devout Christians who believed that the only form of marriage which was consistent with biblical teaching and acceptable to God was between a man and a woman.

Mrs AcArthur served Mr Lee that day and realised when she saw what was being ordered that the message of the cake contradicted her religious views. However, she did not want to embarrass Mr Lee and wanted to discuss matters with her husband. They decided that they could not fulfil the order and therefore informed Mr Lee of this, giving him a full refund.

Mr Lee was shocked and upset and brought a claim against the bakery alleging that they had discriminated against him on the grounds of his sexual orientation.

The bakery strongly refuted this, and relied upon two clear assertions – first, that they would have happily accepted an order from Mr Lee for any other type of cake (and indeed had done so in the past), and secondly, that they would also have refused to make a cake of this nature for a heterosexual customer. In short, the bakery argued that it was about the message on the cake, and not about the customer who placed the order.

The presiding District Judge ruled against the bakery and decided that the bakery had unlawfully discriminated against Mr Lee due to their religious beliefs. This view was upheld by the Court of Appeal in Northern Ireland. However, the Supreme Court clearly and emphatically found that those decisions were incorrect.

The law currently ensures that anyone who provides goods, facilities and services must not discriminate against someone who seeks to use or obtain those goods, facilities or services on grounds of their sexual orientation.

The President of the Supreme Court, Lady Hale, clearly accepted that the arguments which the bakery had made from the outset meant that their actions did not, and could not, amount to discrimination.

The bakery’s actions in cancelling Mr Lee’s order had nothing to do with his sexual orientation, but with their own religious beliefs contradicting the sentiment of the cake which they had been asked to make.

However, the support of gay marriage – and therefore the benefit from the message on the cake – was not restricted to those who were gay, but to those around them as well, regardless of their sexual orientation.

A heterosexual customer who supported gay marriage might equally have sought such a cake, yet would have been refused by the bakery for the same reasons.

Lady Hale was at pains to point out that whilst there had not been discrimination, in this case, she did not seek to minimise or disparage the ‘very real problem’ of discrimination against gay people.

Whilst it was humiliating and an affront to human dignity, to refuse to serve someone because of a characteristic that was protected in law, that was not what had occurred in this case, and Lady Hale did not consider that ‘the project of equal treatment’ benefitted from seeking to extend the law beyond its proper scope.

Many campaigners have responded to the judgment by arguing that the beliefs of the bakery appear to have taken precedence over the beliefs of the customer, and suggested that this was not the ‘right balance’. Others have welcomed the ruling as confirmation that people would not be compelled to express views with which they might disagree for religious reasons.

Businesses and service providers might be relieved with the outcome of this case, but need to remember that this case was decided on the basis that the issue was the message, not the messenger.

However, in other situations the line between the message and the messenger can become blurred, and in those circumstances, businesses need to remind themselves of their duty not to discriminate against anyone whose particular characteristics – whether that is sexual orientation, or religion, race, disability (and many others), are protected by law.

Safia Tharoo
Barrister 40 Bedford Row London

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