Supreme Court holds no discrimination on the grounds of sexual orientation in the ‘gay cake’ case

The Supreme Court has recently issued its decision in the long running ‘gay cake’ case, arguably the most well known discrimination case of recent times.  Whilst this case concerns a claim for discrimination arising out of the provision of goods and services, the same legal principles apply to employment cases and as such, this decision should be of interest to employees and employers alike, as well as members of the public generally.

This case concerned a claim brought by Mr Lee against Ashers Baking Company in Northern Ireland who, back in May 2014, refused to produce a cake supporting gay marriage on religious grounds (as the bakery was a Christian business).  Mr Lee had asked for the cake to be decorated with two Sesame Street characters, Bert and Ernie, who had been used as the logo for ‘QueerSpace’, a voluntary organisation in Northern Ireland supporting the LGBT community.  The cake was also to carry the slogan ‘Support Gay Marriage’.  When Mr Lee’s order was cancelled (and the purchase price refunded to him), he raised a claim in the Northern Irish courts for discrimination on the grounds of sexual orientation and religious belief or political opinion.

At first instance, the Irish court found in favour of Mr Lee (on all three grounds).  It was held that the bakery took issue with his support for gay marriage, which in itself, could not be dissociated from his sexual orientation.  The bakery appealed to the Court of Appeal which held that refusing to complete the order constituted associative direct discrimination on the grounds of sexual orientation.  It did not decide the questions relating to political and religious discrimination.  The bakery then appealed to the Supreme Court who unanimously reversed the decision of the lower courts, finding in favour of the bakery.

The Supreme Court recognised the importance of freedom of expression and noted that whilst the bakery could not refuse to serve Mr Lee on the grounds of him being gay or even because he supported gay marriage, to oblige them to produce a cake iced with a message with which they profoundly disagreed, was quite different.  It is an interesting ruling from a legal point of view.

The Supreme Court drew an interesting distinction.  Importantly, they noted that the bakery did not refuse Mr Lee’s order on the basis of his actual or perceived sexual orientation.  Their objection was rather to the message on the cake.  The court found that this was separable from the question of sexual orientation because support for gay marriage is not a ‘proxy’ for any particular sexual orientation.  People of all sexual orientations can and do support gay marriage.  It also held that this was not a case of ‘associated or perceived discrimination’ as the bakery both employed and served gay people and treated them in a non-discriminatory way.  Given that the objection was to the message and not to any particular person or persons, there was an insufficiently close connection between the reason behind the refusal to produce the cake and the sexual orientation of the customer.

As far as discrimination on political or religious grounds was concerned, the court doubted whether Mr Lee had been discriminated against on the grounds of his political belief but noted that even if he had been, the rights of the bakery owners under Article 9 of the ECHR (i.e. the right to freedom of thought, conscience and religion) should be recognised. The court recognised that in having to produce the cake, the bakery owners would be required to express a message with which they profoundly disagreed.

Readers may be aware that the Supreme Court of the US has also recently handed down a judgement in  ‘Masterpiece Cakeshop Ltd v Colorado Civil Rights Commission’, a case concerning a Christian baker who refused to create a wedding cake for a gay couple.  The US Supreme Court found in favour of the bakery by a majority (on the facts of the particular case) and whilst the facts are different, the US case provides an interesting comparison.

In commenting on the decision of the US court, the UK Supreme Court noted that “there is a clear distinction between refusing to produce a 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.”  Regardless of the facts in the US case, the UK Supreme Court found that in this case it was clear that the bakery would have refused to supply the cake bearing the requested slogan to anyone, regardless of their personal characteristics.  As a result of that, there could be no discrimination on the grounds of sexual orientation and the bakery’s appeal against the decision of the Court of Appeal was successful.

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