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LEGAL CORNER: Bakery guilty of discrimination for not making a cake supporting gay marriage

19th Jun 2015
LEGAL CORNER: Bakery guilty of discrimination for not making a cake supporting gay marriage

The media was awash with stories of the ‘gay cake’ case this month (Lee v Ashers Baking Co Ltd); and the decision sparked heated discussion and debate from all angles. Mr Lee, a gay man, was associated with an organisation called Queerspace, which sought to increase the visibility of the LGBT community in a positive manner. He was planning to attend an event to mark the end of the Northern Ireland anti-homophobia week, and decided to buy a cake for the occasion. He asked Ashers Baking Company to make a cake with his own logo on it. He provided a paper with a picture and a headline of ‘Support Gay Marriage’. He had previously been told that if he brought the logo to the bakery it would be scanned and put onto the cake.

Mr Lee was served by Mrs McArthur. She and her husband were the directors of Ashers Bakery and had set it up in 1992. They were both devoted Christians. The name of the bakery was derived from a reference in the Book of Genesis, although it had no specific religious objectives. Mrs McArthur was shocked to see the wording requested for the cake and she said that she realised immediately that she would not be able to fulfil the order. However, she did not want to embarrass Mr Lee nor did she want a confrontation in the shop. Having taken the order, she wanted to discuss the matter with her husband and her son, who was the General Manager of the bakery. A few days later she telephoned Mr Lee to inform him that his order could not be fulfilled as they were a Christian business and she apologised for having taken the order. She arranged for a full refund. Mr Lee expressed disbelief in her stance, and described his shock and bewilderment at the way that he had been treated.

He brought a claim against the bakery alleging that they had discriminated against him on the grounds of his sexual orientation. He argued that the bakery refused to fulfil his order because they took exception to his sexual orientation as being sinful. However, they were not being asked to promote or support anything, and that since they were not a religious organisation such that they were exempt from the law. The bakery argued that they did not take issue with Mr Lee’s orientation, and that they would have supplied a cake to Mr Lee if it did not contain a message promoting same-sex marriage. They also argued that they would have refused to make the same cake for a heterosexual customer. They argued that the law protected sexual orientation, but not sexual conduct, and that on that basis their actions had not contravened the law.

The judge disagreed and found that the bakery had cancelled the order as they opposed same sex marriage due to their religious beliefs. Same sex marriage was inextricably linked to sexual relations between same sex couples. The purpose of the law was to ensure that people of homosexual orientation were treated equally with people of heterosexual orientation by those in the business of supplying goods, facilities and services. Parliament was aware that there were deeply held religious objections to the law but chose not to insert a ‘conscience objection clause’ to protect those who held such beliefs. The judge found that the bakery was aware, from the conversations between themselves and Mr Lee and from his request, that he was gay. However she also concluded that the bakery had unlawfully discriminated against Mr Lee on the grounds of his sexual orientation and ordered them to pay £500 in damages. The bakery have appealed the decision.

It is important for all businesses and organisations to be aware of the effect of this case. The fact that a business does not agree with, or is strongly opposed to, the ideals or views of a particular individual does not exempt them from providing the goods or services which they would offer to everyone else. Whilst it is true that this may sometimes mean, as it did in this case, that an organisation has to provide a service which goes against its religious views, the flip side of the argument is that if one minority group wants to ensure that they are protected from people refusing to provide them with services, they also need to reciprocate for other minority groups. We are fortunate that we have come along way in this country from the days when a shop could (and did) legitimately put a sign up saying ‘No dogs or Blacks’. Muslims have benefitted from legislation which protects them from being discriminated against because of their religion. In the same way, homosexuals have been granted the same protection, and that also needs to be respected and adhered to, even though this may conflict with our religious principles.

Safia Tharoo, Barrister, 42 Bedford Row, London

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