Refusal to provide cake supporting gay marriage was not direct sexual orientation discrimination
11 October 2018
The Supreme Court (“SC”) has ruled that a bakery did not discriminate on grounds of sexual orientation when it refused to provide a cake for a customer bearing the words “support gay marriage”. The bakery’s refusal was based on the owner’s Christian beliefs that the only form of marriage acceptable to God was between one man and one woman.
This case has been widely reported in the media and has become known as the “gay cake” case. It took place in Northern Ireland, which has similar but not identical provisions in relation to goods and services discrimination as those under the Equality Act 2010 in England and Wales. Direct discrimination occurs where a person is treated less favourably than others “on grounds of” sexual orientation.
Mr Lee is a gay man who volunteers for QueerSpace, an LGBT organisation in Belfast. He ordered a cake from Ashers Bakery for a same-sex marriage event and asked for it to include the headline “support gay marriage”, together with a picture of the characters Bert and Ernie from Sesame Street and the QueerSpace logo. Ashers is run by a married couple who are Christians. They refused to provide the cake on the grounds that they were a Christian business, and so could not print the requested slogan due to their religious beliefs.
Mr Lee brought a claim for sexual orientation discrimination under the law on discrimination in the provision of goods, facilities or services. A district judge found that there had been direct sexual orientation discrimination against Mr Lee. This decision was appealed, and the Northern Ireland Court of Appeal agreed that there had been direct sexual orientation discrimination – although it found that this was a case of associative discrimination based on the fact that Mr Lee associated with the gay and bisexual community.
The Supreme Court’s decision
The SC found that there had not been direct discrimination against Mr Lee, either on grounds of his own sexual orientation or on grounds that he associated with the gay community. The key factors relied on by the SC are as follows:
- The district judge had not found that the bakery refused to provide the cake because of Mr Lee’s actual or perceived sexual orientation. They refused because they opposed same-sex marriage, based on genuinely held religious beliefs. The bakery would have supplied the cake to Mr Lee without the slogan “support gay marriage”, and would have refused to supply a cake with this slogan to a heterosexual person. The refusal was not because of Mr Lee’s own sexual orientation, and so could not be direct discrimination on this basis.
- The SC did consider arguments that support for gay marriage was “indissociable” from sexual orientation. In a previous case (Preddy v Bull  UKSC 73), the SC had found that a bed and breakfast’s policy of letting double-bedded rooms to married couples only, and not civil partners, was direct discrimination. But, at the time, only heterosexual couples could get married – which meant the policy was indissociable from sexual orientation, as a same-sex couple could never comply. The current case was different, because support for gay marriage is not a proxy for any particular sexual orientation, and people of all sexual orientations can and do support it.
In relation to the associative discrimination point, the SC said that there had been no finding that the reason for refusing to supply the cake was that Mr Lee was thought to associate with gay people. The reason was the objection to gay marriage.
- There was an additional argument that there had been discrimination against Mr Lee on grounds of his political opinion (something which is specifically covered in Northern Ireland). The SC looked at this issue in a similar way, considering that the objection was to being required to promote the message on the cake, not to the fact that Mr Lee held a particular opinion. In addition, applying the rights to freedom of thought, conscience and religion and freedom of expression under the European Convention on Human Rights, the bakery owners should not be compelled to express a message with which they disagreed, unless there was justification for doing so.
The SC has applied a technical analysis to the definition of direct discrimination in this case. The law requires treatment to be “on grounds of” or (under the Equality Act) “because of” sexual orientation, which was not the reason here - “In a nutshell, the objection was to the message and not to any particular person or persons”.
At first sight this decision might seem something of a backwards step in relation to rights not to be discriminated against because of sexual orientation. Mr Lee’s claims had succeeded in the lower courts, and he obviously felt strongly about his treatment – albeit so did the bakery owners. The SC did recognise this, with Lady Hale (who gave the main judgment) expressly stating:
“I do not seek to minimise or disparage the very real problem of discrimination against gay people…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.”
In addition, this case should not be seen as a licence for either service providers or employers to behave in this way without risk of legal claims:
- It is interesting to consider whether the same decision would be reached in a case involving a protected characteristic that is less subject to political or religious disagreement than LGBT rights. For example, what if a bakery refused to provide a cake with a slogan “support mixed-race marriage”, or refused to provide a wedding cake portraying a mixed-race couple? If this refusal was based on a genuine religious belief about mixed-race marriage being wrong, would a court be so ready to find that this was not race discrimination? In theory, the law should apply in exactly the same way.
- There also appears to be scope for an indirect discrimination claim in this situation. This was originally part of Mr Lee’s claim, but by the time of the SC hearing it was common ground that this was a case of direct discrimination or nothing. Indirect discrimination involves a provision, criterion or practice which is equally applied to everyone, but which puts those sharing a protected characteristic at a particular disadvantage. In this case, the bakery applied a policy of not providing cakes with slogans supporting gay marriage. This was applied to all customers, but arguably would put gay and lesbian customers at a particular disadvantage because they are more likely to want to order such a cake. Indirect discrimination can be justified if it is a proportionate means of achieving a legitimate aim, but it is far from clear that religious belief would amount to a valid justification for discriminating against others.
- In the employment context, there would also be potential for a harassment claim. This was a case about provision of goods and services, and sexual orientation harassment is excluded from these types of claims under the Equality Act. If a similar type of situation arose in an employment relationship, a harassment claim might be possible. For example, this could arise where one employee expresses religious views against gay marriage to a colleague who feels offended as a result. The conduct would be unwanted, would relate to sexual orientation, and would potentially have the effect of violating the individual’s dignity or creating a humiliating environment for him or her – so allowing a possible claim for sexual orientation harassment irrespective of the individual’s sexual orientation.
Mr Lee has indicated that he is considering his options, which could include a claim to the European Court of Human Rights. In the meantime, this decision indicates that providers of goods and services may not be required to endorse messages that they disagree with, even where the message is question is lawful and affects a group protected by discrimination law.
Lee v Ashers Baking Company Ltd and others – judgment available here