Ramifications of the ‘gay cake’ case

The bakery may have won its appeal, but where will it all end? Daphne Romney QC examines the Supreme Court decision in Lee v Ashers Bakery Company Ltd


 

‘Supreme Court’s ruling on the ‘gay cake’ row is a victory for common sense,’ declared The Telegraph. ‘Gay cake case was costly, divisive and ill advised,’ said The Irish Times. ‘Couple at centre of “gay cake” fight urge Christians to take their stand,’ wrote The Belfast Telegraph. In a febrile political atmosphere, the long-running case of Lee v Ashers Bakery Company Ltd has attracted huge publicity and debate both in Britain and Northern Ireland.

The facts are well known. In 2014, Northern Irish politicians held rallies and events in support of same-sex marriage and Mr Lee had ordered the cake iced with the message ‘Support Gay Marriage’ for one such event (see summary, right). Mr Lee was supported in his action by Northern Ireland’s Equalities Commission. The Christian Institute announced that it would fund Ashers’ defence and DUP politicians raised their case in the Northern Irish Assembly and in the European Parliament. A week before the first hearing, a rally was held in support of the McArthurs. In June 2015, some 2,000 people gathered in Belfast to support same-sex marriage after the Republic of Ireland had voted in favour of it in a referendum in May 2015. On 2 November 2015, the Northern Ireland Assembly voted in favour of same-sex marriage, only for the DUP to block it using the mechanism of a ‘petition of concern’.

Objecting to message or messenger?

At first instance the district judge found that Ashers did not refuse Mr Lee’s order because of his sexual orientation, but because the McArthurs viewed same-sex marriage as ‘sinful’. Had Mr Lee ordered a cake without that message, he would have got one. They objected to the message and not the messenger. However, she held that the message was ‘indissociable’ with sexual orientation.

On appeal, the Northern Ireland Court of Appeal took a different path, holding that this was a case of ‘associated discrimination’. Baroness Hale PSC also distinguished between the man and the message. Ashers did not refuse to bake the cake because Mr Lee was gay, but because it disagreed with the message. It would equally have refused to bake that cake had a straight person placed the order and so there was no discrimination because of sexual orientation. She rejected the ‘indissociable’ argument as misconceived because a belief in same-sex marriage was not limited to gay people. There was therefore a difference between this case and Preddy v Bull [2013] 1 WLR 3741 where a gay couple were refused a double bed in a B&B run by devout Christians because they were unmarried. That rule was ‘indissociable’ with sexual orientation because (at that time) only heterosexual couples could marry. Here, ‘there is no such identity between the criterion and sexual orientation of the customer. People of all sexual orientations, gay, straight or bi-sexual, can and do support gay marriage. Support for gay marriage is not a proxy for any particular sexual orientation’ (para 25).

The Supreme Court held that belief in gay marriage could be a political belief, but for the purposes of discrimination, the relevant political opinion or belief was Mr Lee’s, not the McArthurs. It overruled three Northern Irish cases (In re Northern Ireland Electricity Service’s Application [1987] NI 271, In re O’Neill’s Application [1995] NI 274, at 279-280, and in Ryder v Northern Ireland Policing Board [2007] NICA 43) which had held that the wording of the relevant legislation was sufficiently wide to encompass the religion or belief of the discriminator. On that basis, Ashers’ refusal to bake the cake was nothing to do with Mr Lee’s political beliefs but because they could not support a message with which they deeply disagreed. In other words, the refusal was because of their beliefs, not his. However, it was arguable that Mr Lee’s political belief was ‘indissociable’ with the message on the cake, and so the Supreme Court considered the McArthurs’ freedom of religion in Article 9 and freedom of expression in Article 10 of the European Human Rights Convention and held that were they compelled to bake the cake on pain of damages, those rights would be breached. Baroness Hale concluded that the legislation ‘should not be read or given effect in such a way as to compel providers of goods, facilities and services to express a message with which they disagree, unless justification is shown for doing so.’ This extended in her view to any message on the cake, including support for a political party or religion or support for living ‘in sin’.

Commentary

The purpose of the Supreme Court is to clarify the law. Here, the law is now more unclear than it was previously. On the sexual orientation point, it is true that Ashers would have refused anyone, even Arlene Foster, that particular cake. It is also the case that Ashers would have served Mr Lee with any other cake regardless of his sexual orientation. But is that the point? The message of same-sex marriage in Northern Ireland is indissociable with sexual orientation because gay people are not allowed to marry there whilst straight people are. Whether that is actual or associative discrimination, it is based on sexual orientation.

Similarly, the statutory definition of religion or belief (whether under British or Northern Irish law, which is the same, albeit under different provisions), includes absence of religion or belief. Was Mr Lee’s absence of a fundamental Christian belief in the sanctity of marriage between a man and a woman not the basis of Ashers’ decision?

In any event, the Supreme Court has reintroduced the concept of the commercial conscience clause, although the government had rejected it when consulting on the legislation on the grounds that it could be used as ‘a mask for discrimination’. The point of offering a service to the public is that there should be no discrimination in who can take up the offer. In cross-examination before the district judge, Ashers accepted that they offered a service to everyone with no indication that they would refuse to ice messages with which they disagreed.

"The purpose of the Supreme Court is to clarify the law. Here, the law is now more unclear than it was previously"

What constitutes a message? Is a cake for a same-sex marriage in itself a message? If it says ‘Congratulations Fred and William’, does that carry a message? In Masterpiece Cakeshop v Colorado Civil Rights Commission, 584 US the US Supreme Court was divided on this issue. Justice Gorsuch, with whom Justice Alito concurred, distinguished between an ordinary wedding cake and a same-sex wedding cake: ‘Suggesting that this case is only about ‘wedding cakes’ – and not a wedding cake celebrating a same-sex wedding – actually points up the problem. At its most general level, the cake at issue... was just a mixture of flour and eggs; at its most specific level, it was a cake celebrating the same-sex wedding of [the customers].’ On the other hand Justice Ginsburg, with whom Justice Sotomayor concurred, said that the refusal was ‘for no reason other than their sexual orientation, a cake of the kind he regularly sold to others. When a couple contacts a bakery for a wedding cake, the product they are seeking is a cake celebrating their wedding – not a cake celebrating heterosexual weddings or same-sex weddings – and that is the service [they] were denied.’

Icing on the cake

In cross-examination, Ashers also accepted that the cake could have been supplied in a plain box or wrapped in cling-film. What is the required degree of association? For example, the Christian Institute booked Perfocal to take photos of the McArthurs outside the Supreme Court after their victory. When the agency discovered who had booked it, it refused to hand over the photos and refunded the fee. Perfocal’s founder, Tony Xu, said ‘We appreciate that this looks like tit for tat, and it is… This isn’t just about standing up against discrimination, I hope our stance serves as an example of exactly where this kind of judgment could lead us. Where does it end?’ And that is a fair question. Could Perfocal’s suppliers refuse to supply it with film because they do not wish to be associated with Perfocal’s stance on Ashers’ stance? Would the same be true for the local supermarket refusing to sell Perfocal washing up liquid? And could wholesalers then boycott the local supermarket?

In any event, the Christian Institute has announced that it will mark the win by holding a number of events in Northern Ireland ‘to acknowledge the goodness and faithfulness of God throughout the case’ and ‘to explain the implications of the ruling for Gospel freedom and freedom of speech’. The McArthurs are not expected to attend.

Daphne Romney QC is a barrister at Cloisters specialising in dismissal, discrimination, equal pay and whistleblowing claims. She is the author of Equal Pay – Law and Practice, published by OUP.


Summary

On 9 May 2014, Gareth Lee, a gay man, went into Ashers Bakery in Belfast and ordered a cake iced with two cartoon characters, Bert and Ernie, the logo of the movement Queerspace, and the message ‘Support Gay Marriage’. One of Ashers’ owners, Mrs McArthur, accepted the order and took his £36.50, but then telephoned two days later to tell him that the cake offended the McArthurs’ Christian beliefs.

Mr Lee and the Equality Commission of Northern Ireland brought an action for discrimination in the supply of goods and services. In May 2015, the case succeeded before the district judge with Ashers ordered to pay Mr Lee £500 compensation for hurt feelings. The Northern Irish Attorney General intervened in the appeal, contending that the Northern Irish discrimination provisions (similar to the Equality Act 2010) contravened the European Convention of Human Rights. In October 2014, the appeal was dismissed, but on 10 October 2018, the Supreme Court allowed Ashers’ appeal.

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Daphne Romney QC

Daphne is based at Cloisters Chambers. An expert in high-value, very complex litigation, Daphne has a broad range of clients, from well-known multi-national companies to high profile and non-high profile individuals with cases in the High Court, ET, EAT and Court of Appeal in all types of employment claims. Daphne achieved a record settlement in a major equal pay claim against Birmingham City Council.