The Supreme Court has held in Lee v Ashers Baking Company that the Christian-owned bakery did not directly discriminate against a gay customer when it refused to fulfil his request to bake a cake with a slogan supporting gay marriage.
Ashers Baking Company (“Ashers”) is a Christian-owned bakery chain in Northern Ireland. The owners of Ashers are opposed to same-sex marriage on the basis that it is contrary to their Christian beliefs. Mr Lee ordered a cake from Ashers using their ‘build-a-cake’ service whereby customers could order a cake to their design. Mr Lee requested a cake that included the slogan ‘Support Gay Marriage’. The owners of Ashers decided that they could not fulfil the order as it was contrary to their beliefs and cancelled Mr Lee’s order and gave him a refund. Mr Lee brought claims against Ashers for direct discrimination on grounds of sexual orientation. He also brought direct discrimination claims on ground of religious belief or political opinion. This final claim is unique to Northern Ireland and does not apply in the rest of the UK.
Mr Lee won his claims at the county court and the Northern Ireland Court of Appeal. Ashers appealed to the Supreme Court.
The Supreme Court allowed the appeal and found that Ashers had not discriminated on the grounds of sexual orientation, nor on the grounds of religious belief or political opinion. The court considered the following points:
Direct discrimination on the grounds of sexual orientation
In order to succeed in this claim, the claimant had to show that he had been treated less favourably on the grounds of sexual orientation. The reason for the treatment could be either the sexual orientation of the claimaint himself (whether actual or perceived) or the sexual orientation of someone with whom the claimant associates.
In this case, the court found that the reason for the less favourable treatment had “something to do with the sexual orientation of some people” but that this was not enough to constitute direct discrimination. Ashers did not refuse to fulfil the order because of Mr Lee’s sexual orientation or anyone associated with him. Mr Lee had been a customer of Ashers before. They would have supplied the cake without the message to Mr Lee. Ashers would also have refused to supply the cake with that message to any other customer, whether gay or straight. Therefore the court found that “the objection was to the message, not to the messenger”. It was noted that the bakery served other customers and employed individuals who are gay.
The court held that support for gay marriage was not indissociable from the sexual orientation of the individual. In other words, people of all sexual orientations support gay marriage and being a supporter of gay marriage was not a proxy for being gay.
Therefore, the reason for the less favourable treatment was the message on the cake, not the sexual orientation of the claimant or anyone associated with him.
Direct discrimination on grounds of religious belief or political opinion
The court held that Ashers had not discriminated against Mr Lee on the grounds of religious belief. It was the owners of Ashers (the alleged discriminators) that held the relevant religious belief. A claim of the type that Mr Lee had brought could only be made on the basis of the religious belief of someone other than the alleged discriminator. Therefore this claim failed.
The support for gay marriage is a political opinion however and Mr Lee held this opinion. In relation to this part of the claim, the court considered the impact of the bakery owners’ rights to freedom of expression and freedom of religion under the European Convention on Human Rights. The court found that the discrimination legislation should not be given effect to in such a way to compel service providers to express a message with which they disagreed, unless it is shown to be justified. It was not justified to compel Ashers in this case.
The decision in this case has proved highly controversial and still leaves some doubt about what services providers are restrained from doing.
Although the treatment does not have to be on the grounds of the actual or perceived sexual orientation of the claimant, but can be on the grounds of someone with whom he associates, the court has given no guidance as to how close the connection needs to be to constitute associative discrimination. To what extent service providers can rely on objecting to ‘the message not the messenger’ is left undefined and there is latitude in deciding if one is the proxy for the other. Finally, how far the human rights of expression and religion can be used to erode discrimination protection in this area is uncertain.
The extent to which individuals’ rights are balanced in a workplace setting is not made easier following this case. Often there is a tension between religious belief and LGBT rights. Employers clearly must not discriminate against employees because they hold certain religious beliefs. This is complicated however, when an employee holding religious beliefs manifests those beliefs to the detriment of others with a protected characteristic. Having a policy prohibiting harassment, which would apply even if the harassment is a manifestation of deeply held religious belief would be legitimate, as long as it is proportionate and is applied equally to all religious groups.