By Frank Cranmer
As every regular reader will know, Gareth Lee is a gay man associated with QueerSpace, an organisation for the lesbian, gay, bisexual and transgendered community in Northern Ireland. To mark the International Day Against Homophobia and Transphobia, in May 2014 he ordered a cake from Ashers Baking bearing the slogan “Support Gay Marriage” and a picture of the Sesame Street puppets Bert and Ernie. He had previously bought things at the same branch of Ashers and had become aware, from a leaflet, that he could have a cake iced with a graphic of his own design. Ashers initially accepted his order but Mrs Karen McArthur subsequently telephoned him to say that his order could not be fulfilled because Ashers was “a Christian business and, in hindsight, she should not have taken the order”: she apologised and refunded his money.
In Lee v Ashers Baking Co Ltd & Anor  NICty 2, Mr Lee claimed before Belfast County Court that he had been discriminated against, contrary to the provisions of the Equality Act (Sexual Orientation) Regulations (Northern Ireland) 2006 and/or the Fair Employment and Treatment (Northern Ireland) Order 1998. District Judge Brownlie held the company liable for unlawful discrimination contrary to the provisions of the 2006 Regulations and the 1998 Order and ruled that it could not rely on the protection afforded by Article 9 ECHR. That judgment was subsequently upheld on appeal; in Lee v McArthur & Ors  NICA 29 the Court [Morgan LCJ, Weatherup and Weir LJJ] held that Ashers had discriminated directly against Mr Lee on grounds of sexual orientation by refusing to make the cake and, further, that the Regulations and Order were not incompatible with Articles 9, 10 or 14 ECHR.
Ashers Baking and the McArthurs appealed; their appeal was heard together with two associated references by the Attorney General for Northern Ireland on devolution issues.
The Supreme Court’s judgment, though unanimous, was in two parts: Lady Hale PSC gave judgment on the discrimination issue, while the judgment on the procedural issue as to whether or not an appeal lay against the decision of the Northern Ireland Court of Appeal was given by Lord Mance. What follows concentrates on the discrimination issue.
In the opinion of Lady Hale, the substantive question before the Court was
“whether it is unlawful discrimination, either on grounds of sexual orientation, or on grounds of religious belief or political opinion, for a bakery to refuse to supply a cake iced with the message ‘support gay marriage’ because of the sincere religious belief of its owners that gay marriage is inconsistent with Biblical teaching and therefore unacceptable to God. If the prima facie answer to either question is ‘yes’, then questions arise as to the rights of the bakery and its owners to freedom of religion and freedom of expression, under articles 9 and 10 of the European Convention on Human Rights, and what difference, if any, those rights might make to that prima facie answer.” .
In the County Court, DJ Brownlie had concluded that support for same sex marriage was “indissociable” from homosexual orientation. Lady Hale rejected that conclusion as a misunderstanding of
“… the role that ‘indissociability’ plays in direct discrimination. It comes into play when the express or overt criterion used as the reason for less favourable treatment is not the protected characteristic itself but some proxy for it” .
She went on to point out that people of all sexual orientations supported gay marriage and that it was not a proxy for any particular sexual orientation . Nor did she agree with the Court of Appeal that the message on the cake could only benefit gay or bisexual people:
“It could also accrue to the benefit of the children, the parents, the families and friends of gay people who wished to show their commitment to one another in marriage, as well as to the wider community who recognise the social benefits which such commitment can bring” .
Further, there had been no associative discrimination because “In a nutshell, the objection was to the message and not to any particular person or persons” . Moreover, under the provisions of the Fair Employment and Treatment (Northern Ireland) Order 1998, “the less favourable treatment prohibited by FETO must be on the grounds of religious belief or political opinion of someone other than the person meting out that treatment” [45: emphasis added]. The objection had not been to Mr Lee because he, or anyone with whom he associated, held a political opinion supporting gay marriage: the McArthurs had objected to being required to promote the message on the cake: “The less favourable treatment was afforded to the message, not to the man” and Ashers had been quite prepared to serve him in other ways .
As to the issue of Convention rights, she noted that rights under Articles 9 and 10 might be limited or restricted in accordance with the law where the limitation was necessary in a democratic society and pursued a legitimate aim:
“It is, of course, the case that businesses offering services to the public are not entitled to discriminate on certain grounds. The bakery could not refuse to provide a cake – or any other of their products – to Mr Lee because he was a gay man or because he supported gay marriage. But that important fact does not amount to a justification for something completely different – obliging them to supply a cake iced with a message with which they profoundly disagreed. In my view, they would be entitled to refuse to do that 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: emphasis added].
Nor did she believe that the Fair Employment and Treatment (Northern Ireland) Order had to 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” . Furthermore:
“As the courts below reached a different conclusion on this issue, they did not have to consider the position of the company separately from that of Mr and Mrs McArthur. It is the case that in X v Switzerland… and in Kustannus Oy Vapaa Ajattelija Ab v Finland… the European Commission of Human Rights held that limited companies could not rely upon article 9(1) to resist paying church taxes. In this case, however, to hold the company liable when the McArthurs are not would effectively negate their convention rights. In holding that the company is not liable, this court is not holding that the company has rights under article 9; rather, it is upholding the rights of the McArthurs under that article” [57: emphasis added]
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