Gay cake case: ‘The objection was to the message, not the messenger’

The UK Supreme court handed down judgment on 10 October 2018 in Lee (Respondent) v Ashers Baking Company Ltd and others (Appellants) (Northern Ireland) [2018] UKSC 49, otherwise known as ‘the gay cake case’. The court unanimously held that Ashers Bakery did not act in a discriminatory way by refusing to make a cake which had the message “Support Gay Marriage”.

Background

The McArthurs own a number of ‘Ashers Bakeries’ in Northern Ireland in and around the Belfast area. The owners run Ashers in accordance with their Christian beliefs: notably, that (a) the only form of full sexual expression which is consistent with Biblical teaching (and therefore acceptable to God) is that between a man and a woman within marriage; and (b) the only form of marriage consistent with Biblical teaching (and therefore acceptable to God) is that between a man and a woman.

Mr Lee is a gay man who volunteers with QueerSpace, an LGBT organisation in Belfast campaigning to enable same sex couples to get married. Mr Lee was invited to a QueerSpace event following a motion in the Northern Ireland Assembly narrowly rejecting same sex marriage. He wanted to take a cake to the party.

In early May 2014 Mr Lee went into Ashers bakery on Royal Avenue, Belfast, placing an order for a cake to be iced with a coloured picture of “Bert and Ernie”, the QueerSpace logo, and the message “Support Gay Marriage”. Over the following weekend, the McArthurs decided that they could not ‘in conscience’ [para 12 of the Supreme Court judgment] produce a cake with that slogan, and chose not to fulfil the order. The McArthurs phoned Mr Lee, explaining that his order could not be fulfilled because they were a Christian business. Mr Lee was given a full refund.

First instance

Mr Lee asked for help from the Equality Commission for Northern Ireland (“the ECNI”), who then supported him in bringing the claim for direct and indirect discrimination on the grounds of sexual orientation, religious belief or political opinion.

On 19 May 2015 the District Judge found that, when the bakers refused to carry out the order, they had perceived that Mr Lee was gay and/or associated with others who were gay. Further, the county court held that refusing to complete the order was direct discrimination on all three grounds. The judge awarded Mr Lee damages in the agreed sum of £500.

Court of Appeal

The Defendants appealed with the support of the Christian Institute to the Court of Appeal. On 24 October 2016 the court handed down judgment, dismissing the appeal on the basis that this was a case of associative discrimination on grounds of sexual orientation. It was not necessary to read down the Equality Act (Sexual Orientation) Regulations (Northern Ireland) 2006 (SI 2006/439) (“SOR”) to take account of the McArthurs’ Convention rights. The court did not therefore decide the questions arising under political and religious discrimination.

The Court of Appeal expressed concern that the correspondence between ECNI and the bakery may create the impression that ECNI was partial to assisting non-religious parties and would not assist members of the faith community.

Supreme Court

Baroness Hale split her judgment into discussing the claim for discrimination on grounds of sexual orientation under the SORs, followed by the claim for discrimination on grounds of political opinion under the Fair Employment and Treatment (Northern Ireland) Order 1998 (SI 1998/3162 (NI 62)) (“FETO”), and finally considered the impact of the Convention rights on such a claim. Lord Mance gave judgment on a jurisdiction issue, though that section will not be addressed in this article.

Sexual orientation claim

The District Judge had not found that the bakery refused to fulfil the order because of Mr Lee’s actual or perceived sexual orientation, but rather “cancelled this order because they oppose same sex marriage for the reason that they regard it as sinful and contrary to their genuinely held religious beliefs”. The Court of Appeal pointed out that the judge did not take issue with the submission that the bakery would have supplied Mr Lee with a cake without the message “support gay marriage” and that they would also have refused to supply a cake with the message requested to a heterosexual customer. Baroness Hale noted: “The objection was to the message, not the messenger”.

Counsel for the appellants, David Scoffield QC, argued that it was not open to the judge to find that there was direct discrimination on the grounds of sexual orientation since “It cannot constitute direct discrimination to treat all employees in precisely the same way” (Islington Borough Council v Ladele [2009] EWCA Civ 1357; [2010] 1 WLR 955, para 29).

Counsel for the respondents argued that this was a case of associative discrimination. However, the Supreme Court rejected this on the basis that there was no evidence that the bakery had discriminated on this ground before. It employed and served gay people, treating them in a non-discriminatory way. The reason was rather their religious objection to gay marriage.

Political beliefs claim

The District Judge held that support for gay marriage was a political opinion due to the political debate going on in Northern Ireland about whether same sex couples should be able to marry. Political opinion was defined as “an opinion relating to the policy of government and matters touching the government of the state” (McKay v Northern Ireland Public Service Alliance [1994] NI 103).

It was held that there was no less favourable treatment on this ground because, like with the sexual orientation claim, anyone else would have been treated in the same way. As stated by Baroness Hale:

“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 favourable treatment was afforded to the message not to the man.” [para 47 SC judgment]

The Supreme Court did note that there was a much closer association between the political opinions of the man and the message he wished to promote (than between sexual orientation and the message) such that it could be argued that they were “indissociable”. It was therefore necessary to consider the parties’ Convention rights.

The Convention Rights

The court considered that the Convention rights to freedom of thought, conscience and religion and freedom of expression were engaged in this case. Article 9(1) provides that:

“Everyone has the right to freedom of thought, conscience and religion; this right includes freedom to change his religion or belief and freedom, either alone or in community with others and in public or private, to manifest his religion or belief, in worship, teaching, practice and observance.”

Article 9(2) permits limitations on the freedom to manifest one’s religion or beliefs but not on the freedom to hold them. Further, the case of Buscarini v San Marino (1999) 30 EHRR 208 was relied upon to show that obliging a person to manifest a belief which he does not hold has been held to be a limitation on his article 9(1) rights.

Article 10(1) provides that “Everyone has the right to freedom of expression. This right shall include freedom to hold opinions and to receive and impart information and ideas without interference by public authority and regardless of frontiers…”

Both Articles 9 and 10 can be qualified insofar as is necessary in a democratic society in pursuit of a legitimate aim. Baroness Hale makes it clear that the bakery could not refuse to provide a cake - or any other of their products - to Mr Lee because he is a gay man or because he supports gay marriage. However, Baroness Hale continued:

“In my view they would be entitled to refuse…whatever the message conveyed by the icing on the cake - support for living in sin, support for a particular political party, support for a particular religious denomination. The fact that this particular message had to do with sexual orientation is irrelevant to the FETO claim.” [55]

For these reasons, the court considered that the McArthurs’ Article 9 rights had to be upheld in this instance. The bakery could not be obliged to supply a cake iced with a message with which they profoundly disagreed.

Comment

The BBC reported this to be possibly the most expensive cake in history, with Ashers’ legal fees amounting to £200,000 and the Equality Commission’s fees (on behalf of Mr Lee) amounting to £250,000. The original cake was only £36.50.

Interestingly Baroness Hale in her postscript to the case distinguishes the Ashers case from the factually similar US Supreme Court case, Masterpiece Cakeshop Ltd v Colorado Civil Rights Commission (unreported) 4 June 2018. In that case, a Christian baker refused to create a wedding cake for a gay couple because of his opposition to same sex marriage. No particular message was requested on the cake itself. Pre-empting the inevitable comparison that will come, Baroness Hale concluded that:

“The important message from the Masterpiece Bakery case is that there is a clear distinction between refusing to produce a cake conveying a particular message, for any customer who wants such a cake, and refusing to produce a cake for the particular customer who wants it because of that customer’s characteristics. One can debate which side of the line particular factual scenarios fall. But in our case there can be no doubt. The bakery would have refused to supply 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 would be entailed for imposing civil liability for refusing to fulfil the order.” [62 SC judgment]

Baroness Hale recognised a right against “compelled speech”, that people should not be required to voice views that they do not hold. This doctrine, effectively imported from the US First Amendment doctrine and echoed in RT (Zimbabwe) v Secretary of State for the Home Department [2012] UKSC 38 has been deemed a “welcome development in the domestic law on expression rights”. It was also supported in the ECHR case Buscarini v San Marino on the right not to hold religious beliefs. Jacob Rowbottom, on the UK Constitutional Law Association blog, noted that “The challenge lies in identifying when a right against compelled expression is engaged and where the doctrine is limited.” As in this case, a limitation could be that speech cannot be compelled in relation to certain types of message, such as those concerning political/religious beliefs.

Human rights campaigner Peter Tatchell deems this verdict “a victory for freedom of expression.” He goes on to make the point that “as well as meaning that Ashers cannot be legally forced to aid the promotion of same-sex marriage, it also means that gay bakers cannot be compelled by law to decorate cakes with anti-gay marriage slogans”.

Meanwhile, Mr Lee reportedly said that the ruling made him feel like a "second class citizen" in Northern Ireland, adding: "I think this has consequences for everyone. Anyone can walk into a shop - you shouldn't have to work out if you're going to be served based on their religious beliefs. I am confused."

It is currently unclear if the claimants plan to appeal the ruling to the European Court of Human Rights.