Not just a piece of cake

7 November 2016 by Alasdair Henderson

Lee v. Ashers Baking Company Ltd – read judgment here. It is rare indeed for a court judgment to unite newspapers across the political spectrum in criticism, from the Guardian to the Telegraph (taking in veteran human rights campaigner Peter Tatchell on the way), but the so-called ‘gay cake’ case has achieved just that. 

The Northern Ireland Court of Appeal upheld the decision of District Judge Brownlie that it was direct discrimination on the grounds of sexual orientation for the owners of Ashers Bakery to refuse to bake a cake saying ‘Support Gay Marriage’ on the basis that such a message conflicted with their deeply-held Christian beliefs about the nature of marriage. 

As the Court of Appeal acknowledged, the basic facts of the case “might not suggest that it is a matter of any great moment“. The owners of the bakery, Mr and Mrs McArthur, cancelled the order quickly and politely, providing an immediate refund. The customer, Mr Lee, was able to obtain a suitable replacement cake very easily from another supplier. So why all the fuss? Well, as the Court explained, “those bare facts engage the crucial issue of the manner in which any conflicts between the LGBT community and the faith community in the commercial space should be resolved“. The case is therefore of much greater significance than a single order for cake, raising key questions about the scope of discrimination law and the appropriate level of protection for freedom of conscience in a plural society.

The Judgment

Judge Brownlie’s decision has previously been covered in this blog. The key steps in the Court of Appeal’s reasoning were as follows.

First, although it was accepted that Mr and Mrs McArthur did not know Mr Lee was gay, their refusal to bake the cake did amount to direct discrimination on grounds of sexual orientation. The explanation for this somewhat surprising conclusion comes in a single paragraph of the judgment [58], where the Court held that not baking the cake amounted to associative discrimination. This is the concept that it is unlawful to treat somebody less favourably because they are associated with someone else of a particular protected characteristic, even if they themselves do not share that characteristic. The Court’s logic was:

The benefit from the message or slogan on the cake could only accrue to gay or bisexual people. The appellants would not have objected to a cake carrying the message ‘Support Heterosexual Marriage’ or indeed ‘Support Marriage’. We accept that it was the use of the word ‘Gay’ in the context of the message which prevented the order from being fulfilled. The reason that the order was cancelled was that the appellants would not provide a cake with a message supporting a right to marry for those of a particular sexual orientation…There was an exact correspondence between those of the particular sexual orientation and those in respect of whom the message supported the right to marry. This was a case of association with the gay and bisexual community and the protected personal characteristic was the sexual orientation of that community. Accordingly this was direct discrimination.

Did you follow that? No, me neither. See further below.

Second, the Court rejected the argument that the Human Rights Act 1998 required the 2006 Equality Regulations to be ‘read down’ or disapplied in order to avoid breaching the McArthurs’ Article 9 and Article 10 rights. The Court considered that in the 2006 Regulations Parliament had struck a proportionate balance between the rights of the gay community and the rights of religious believers. The Court held that the McArthurs had not been forced to support gay marriage by baking the cake, as “the fact that a baker provides a cake for a particular team or portrays witches on a Halloween cake does not indicate any support for either” [67].

The Court then went on to consider direct discrimination on grounds of religious belief or political opinion, including an argument by the Attorney-General of Northern Ireland, who had intervened in the case, that the 2006 Regulations and the Fair Employment and Treatment (Northern Ireland) Order 1998 were void as they themselves were discriminatory and contrary to the Northern Ireland Act 1998. Sadly there is not space in this blogpost to deal with this point, but the Court rejected the argument. In any event, the focus of the case was on the sexual orientation discrimination aspect.

Comment

The Court of Appeal’s reasoning on why not baking the cake amounted to direct discrimination stretches the concept of associative discrimination to breaking point. There was no actual gay person whom the McArthurs treated less favourably. It was clear that what they objected to was not the customer but the message. They would have refused to bake this cake for anyone, regardless of their sexual orientation. They had sold baked goods to Mr Lee in the past and (rather graciously, given that he has sued them) made it clear they would be happy to serve him in the future. But the Court held that the McArthurs directly discriminated against Mr Lee due to his association with ‘the gay and bisexual community’ writ large, rather than any specific gay person, and that this association existed because the idea of same-sex marriage is one which only benefits gay and bisexual people.

Discrimination law is supposed to be about protecting people, not ideas or words. By stretching associative discrimination into a concept that links Mr Lee to ‘the gay community’ via the idea of gay marriage, the Court of Appeal’s approach turns equality legislation into something much more wide-ranging in scope, and significantly less predictable, than has ever been the case before.

If the Court of Appeal are right about direct discrimination, this result clearly interferes with the McArthurs’ freedom of conscience and freedom of religion. The question then becomes whether that interference is justified as a proportionate means of achieving a legitimate end (namely the protection of the freedom of the gay community)? The answer the Court of Appeal gave is “Yes”.

But a striking feature of this case is that Mr Lee was able to obtain the cake he wanted with ease elsewhere. Is it proportionate to penalise the owners of Ashers Bakery for following their consciences, when the practical effect on Mr Lee was negligible? It is possible to imagine a relatively minor gloss on the Regulations which would have managed more proportionately the conflict between the right of the gay community not to be discriminated against and the right to freedom of conscience. For instance, it could be lawful to discriminate by refusing to provide goods or services only where:

• the refusal is based on sincerely-held religious beliefs or conscientious objection;
• the refusal is expressed privately and respectfully; and
• the customer is able to obtain the goods or services elsewhere with little difficulty.

It is more than a little ironic that this judgment was handed down just a few days after the UK Government hosted a major conference on protecting religious liberty worldwide, and that last Thursday, three days after the Court of Appeal’s decision, was International Religious Freedom Day. Both events emphasised the fundamental importance of people being able to live according to their beliefs and in line with their consciences.

The Court of Appeal’s solution to the impact of their ruling on the McArthurs’ freedom of conscience was that they could simply stop offering to bake any customised cakes with a political message. That may not seem like too much of an imposition on the facts of this particular case, but where does this logic end? What if this case had involved a publisher rather than a baker? Would they have to stop producing any political leaflets to comply with the law? The effect of that approach could be to drive people with any deeply-held beliefs out of all kinds of businesses.

Peter Tatchell, the Guardian and the Telegraph are right; this decision risks significantly restricting freedom of conscience and freedom of speech for all of us. There must be a better way of balancing competing rights in a diverse, plural society.