Posted by Ellen Goodland, Trainee Solicitor
Supreme Court ruled – refusing to bake a cake with a message supporting gay marriage is not discrimination
The long-awaited Supreme Court judgement in the ‘gay cake’ case has today been announced, the Supreme Court in Lee v Ashers Baking Company Ltd and Others has held that it is not direct discrimination for a Christian bakery to refuse to bake a cake containing a message supporting gay marriage.
So what’s all this about?
Ashers Baking Company Ltd (ABC Ltd) is a family-owned Northern Ireland bakery. CM and KM, two of its directors, are Christians who oppose the introduction of same-sex marriage.
In May 2014, Mr Lee who is a gay man associated with QueerSpace, a volunteer-led organisation for the LGBT community in Northern Ireland, ordered a cake from ABC Ltd with a photo of Bert and Ernie from Sesame Street (QueerSpaces’ logo) and the wording ‘Support Gay Marriage’.
Mr Lee’s order was initially accepted but a few days later KM telephoned Mr Lee to explain that the order could not be fulfilled as the bakery was a ‘Christian business’ and instead he was given a refund.
Mr Lee brought proceedings for, amongst other things, direct discrimination on the grounds of sexual orientation in the provision of goods and services.
Why did this case go all the way to the Supreme Court?
Initially Mr Lee’s claims were upheld and it was found that ABC Ltd treated Mr Lee less favourably on grounds of sexual orientation. However it was acknowledged that ABC Ltd would have supplied Mr Lee with a cake without the ‘support gay marriage’ message and would have refused an order for a cake with the same message from a heterosexual customer. However the Judge concluded that CM and KM’s opposition for same-sex marriage is inextricably linked to a particular sexual orientation.
ABC Ltd appealed to the Court of Appeal and it was decided that the benefit of a pro-gay marriage message on a cake benefits those of that sexual orientation, therefore it was decided that there was exact correlation between those of the particular sexual orientation and the message. Therefore refusing to bake the cake with the message was discrimination.
However this was appealed to the Supreme Court and it was decided that ABC Ltd had not directly discriminated on the grounds of sexual orientation. This is on the basis that the objection was to the message on the cake, not to the personal characteristics of anyone associated with the cake. It was said that support for gay marriage is not a proxy for any particular sexual orientation, since people of all sexual orientations can and do support gay marriage.
Importantly, it stated that for direct discrimination, there has to be a closer connection to the less favourable treatment on the grounds of sexual orientation; it is not enough to say that the less favourable treatment just had something to do with sexual orientation.
Whilst for some this is an unanticipated decision, the key message is the distinction between refusing to serve someone because they are gay and not supplying a cake because of a message profoundly disagreed with.
This has been a very contentious case, particularly in Northern Ireland as this is the only part of the UK or Ireland where same-sex marriage is outlawed. For some, in light of the climate in Northern Ireland, today’s ruling is disappointing where the fight continues for same-sex marriage equality.
However Mr Lee’s fight may not be over just yet as he has said he is considering his options regarding appealing to the European Court of Human Rights – watch this space!
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