Conscience and cake: the final chapter
15 October 2018
Lee v. Ashers Baking Company Ltd – read judgment here.
On Wednesday the Supreme Court handed down its much-anticipated judgment in the ‘gay cake’ case. The Court unanimously held that it was not direct discrimination on grounds of sexual orientation or political opinion for the owners of a Northern Irish bakery to refuse to bake a cake with the message ‘Support Gay Marriage’ on it, when to do so would have been contrary to their sincerely held religious beliefs.
The judgment is a significant and welcome affirmation of the fundamental importance of freedom of conscience and freedom of speech. The Court emphasised that refusing to provide a good or service to someone because they are gay (or because of any other protected characteristic) is unlawful discrimination — this judgment should not give anyone the idea that discrimination is now acceptable. However, the Court made clear that the purpose of equality law is to protect people, not ideas, and that no-one should ever be compelled by law to make a statement or express a message with which they do not agree.
Ashers Baking Company Ltd, named after a verse in the Bible about culinary prowess and owned by a Christian couple called Mr and Mrs McArthur, runs six shops in Northern Ireland. Ashers’ shops provide a ‘Build-a-Cake’ service whereby customers can request particular images or messages to be iced onto a cake.
On 8 May 2014, Gareth Lee, a gay man who volunteers for QueerSpace (a LGBT community organisation in Belfast), ordered a cake from Ashers with an image of the Sesame Street characters Bert and Ernie and the slogan ‘Support Gay Marriage’, in order to take to a party. Although Mrs McArthur took the order without objection, in order to spare Mr Lee any embarrassment, she was uneasy about it. Over the weekend the McArthurs decided they could not in good conscience produce a cake covered in a slogan they profoundly disagreed with, and so could not fulfil the order. Mrs McArthur telephoned Mr Lee, explained their decision, apologised and gave him a refund. Mr Lee was able to get his cake made by a different baker in time for the party.
The question before the Court was whether the refusal to bake the cake amounted to discrimination on grounds of sexual orientation, contrary to the Equality Act (Sexual Orientation) Regulations (Northern Ireland) 2006, on on grounds of political opinion, contrary to the Fair Employment and Treatment (Northern Ireland) Order 1998.
Sexual orientation discrimination
Lady Hale, who gave the judgment, zeroed in on the critical point that the McArthurs’ objection was to the message, not the messenger. They did not have any problem with Mr Lee, on grounds of his sexual orientation or anything else. It was the slogan on the cake which was the problem.
In the county court, the refusal to bake the cake had been found to be direct discrimination because support for same sex marriage was held to be ‘indissociable’ from sexual orientation. But as Lady Hale pointed out, this is a misunderstanding of ‘indissociability’. This concept comes into play where the criterion used as the reason for less favourable treatment is an exact proxy for a protected characteristic. But plenty of heterosexual people support gay marriage (and some gay people oppose it). So support for gay marriage is not an exact proxy for any particular sexual orientation.
The Court of Appeal had held that there was direct ‘associative’ discrimination, because whilst Ashers didn’t treat Mr Lee less favourably because of his own sexual orientation, he was associated with the gay community at large, and that was enough. But the problem with that reasoning is that it was unsupported by the facts. There was no evidence that the McArthurs had ever discriminated against gay people. On the contrary, they had served gay customers and employed gay staff.
Their reason for refusing to bake the cake was simply and solely their religious belief that the only form of marriage consistent with Biblical teaching, and therefore acceptable to God, is that between a man and a woman. Moreover, associative discrimination requires a link to a particular person, not a general connection to a group or community.
So, in the end, the answer to this case on the sexual orientation discrimination point was very straightforward. As Lady Hale concluded:
Experience has shown that the providers of employment, education, accommodation, goods, facilities and services do not always treat people with equal dignity and respect, especially if they have certain personal characteristics which are now protected by the law. It is deeply humiliating, and an affront to human dignity, to deny someone a service because of that person’s race, gender, disability, sexual orientation or any of the other protected personal characteristics. But that is not what happened in this case and it does the project of equal treatment no favours to seek to extend it beyond its proper scope.
Political opinion discrimination
The rest of the UK does not have any law prohibiting discrimination on grounds of political opinion, but Northern Ireland does, because of the particular context of long-running tension between Unionists and Republicans there.
Support for gay marriage is obviously a political opinion, and so Mr Lee therefore also claimed that he was discriminated against on the basis on his political opinion. Although the bakery objected to the message not the man, there was a very close association between the political opinion of Mr Lee and the slogan on the cake, so ‘indissociability’ potentially did apply.
The Court therefore considered how Articles 9 and 10 of the ECHR affected the interpretation of the law. Lady Hale noted that to oblige a person to manifest a belief which he does not hold is an interference with his (absolute) right to freedom of thought, conscience and religion under Article 9(1), and his (qualified) freedom of expression under Article 10(1). A parallel was drawn with the jurisprudence preventing ‘compelled speech’ developed by the United States Supreme Court, built on the principle that the right to freedom of speech entails the right to refrain from speaking at all, although Lady Hale was of the view that the Strasbourg case-law contained a similar idea.
Given these ECHR protections, Lady Hale found that whilst the law prevents a business from refusing any good or service to a customer because of the customer’s political opinions, it must be read in such a way that it does not oblige anyone to express a message with which they disagree. Thus Ashers did not discriminate against Mr Lee on grounds of political opinion either.
Some commentators have suggested that this judgment has introduced a new ambiguity into the law, and that there will now be a raft of cases involving business owners refusing orders for all manner of reasons. That is unlikely. The number of issues which commonly give rise to deeply-felt conscientious objections is in practice quite small — mainly, though not exclusively, around matters of sex or death. The vast majority of business transactions are entirely unaffected. In any event, the occasional refusal of an order on grounds of conscience is a small price to pay for a genuinely plural society, where people are free to believe what they want.
There might be some outstanding questions around the edges of the principles set out by the Court. Would it be discrimination for a baker to refuse to make a wedding cake for a gay couple if he would make one for a straight couple, for instance? That issue is canvassed in a post-script to the judgment referring to the recent Masterpiece Cakeshop case in the US, covered by this Blog here, but Lady Hale expressed no conclusion on the matter.
The case also opens up some interesting issues about the religious rights of companies. Lady Hale dealt with this very briefly, essentially deciding it was not a relevant matter because in these particular circumstances holding Ashers Baking Company Ltd not liable was the same as upholding the ECHR rights of the McArthurs. However, things could get more tricky where a bigger company is concerned, or where the company is (for instance) a charity with a religious ethos.
In general, though, this decision actually restores some much-needed clarity to the concepts of indissociability and associative discrimination, and helpfully draws a bright-line distinction between people (who are protected by equality legislation) and ideas (which are not).
Hopefully, this sensible judgment reassures gay people that any discrimination against them is wrong, whilst also reassuring religious people that their deeply held beliefs about human sexuality are legitimate and they won’t be compelled to contradict them. It is hoped that it might help encourage more mutual respect and tolerance between religious people and lesbian, gay or bisexual people (not to mention make life easier for the many people who are both religious and LGB).
Alasdair Henderson is a barrister at One Crown Office Row.