Refusal to provide cake with slogan "Support Gay marriage" not discriminatory

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Refusal to provide cake with slogan "Support Gay marriage" not discriminatory

Published 13 noviembre 2018

The facts

Ashers Baking Company Ltd is a Northern Ireland bakery. Two of its directors are Christians who oppose same sex marriage because they believe it is contrary to God’s law. Mr Lee is a gay man who volunteers for QueerSpace, an organisation for the LGBT community in Belfast which supports the campaign for same sex marriage in Northern Ireland.

Mr Lee ordered a cake from Ashers to be iced with his design, a coloured picture of Bert and Ernie from Sesame Street, the QueerSpace logo, and the headline “Support Gay Marriage”. Ashers turned down the order, explaining that they were a Christian organisation, and could not print the slogan requested. Mr Lee complained to the Equality Commission for Northern Ireland (the “ECNI”), and the ECNI supported him in bring a claim in the county court for direct and indirect discrimination on the grounds of sexual orientation, religious belief or political opinion. Mr Lee’s claims were upheld by the county court. The Presiding District Judge accepted that Ashers would have supplied Mr Lee with a cake which was not iced with the message “support gay marriage”, and that it would have refused an order for a cake with this message from a heterosexual customer. However, she considered that the ground for the treatment was Mr Lee’s support for same sex marriage, and that this is indissociable from sexual orientation, i.e., the express or overt criterion is a "proxy" for the protected characteristic in question. The judge also found that the directors had treated Mr Lee less favourably because of his support for same sex marriage, which was a political opinion. Mr Lee was awarded £500 in damages. Ashers unsuccessfully appealed to the Northern Ireland Court of Appeal. The Court of Appeal noted that the benefit from the pro-gay marriage message on the cake could only accrue to gay or bisexual people. The reason the order was cancelled was that Ashers would not provide a cake with a message supporting a right to marry for those of a particular sexual orientation. The Court of Appeal also held that this was a case of association with the gay and bisexual community and the protected personal characteristic was the sexual orientation of that community. The reason for not supplying the cake was that Mr Lee was likely to associate with the gay community of which the bakery owners disapproved. Ashers appealed to the Supreme Court.

The Supreme Court allowed the appeal finding that Ashers had refused to fulfil the order because the directors objected to the message on the cake. The Supreme Court did not agree that support for gay sex marriage was indissociable from Mr Lee’s sexual orientation, the lead judge commenting that people of all sexual orientations can and do support gay marriage. The Supreme Court also considered whether this was a case of associative or perceived discrimination. They found the objection was to the message on the cake and not to any personal characteristic of the messenger or of anyone with whom he was associated. It held that there was no evidence that Ashers had discriminated because of Mr Lee’s association with the gay and bisexual community. Indeed there was evidence that Ashers both employed and served gay people and treated them in a non-discriminatory way.

What does this mean for employers?

While this is of more direct relevance to service providers, it is also relevant to employers. It may be that, following this case, it will be harder for claimants to establish claims of associative discrimination – though establishing whether or not associative discrimination has occurred is unlikely to be clear cut. This case makes it clear that it is not enough to say that the less favourable treatment "has something to do with the sexual orientation of some people". However, at the other end of the scale, less favourable treatment in associative discrimination does not have to be because of the actual or perceived sexual orientation of the claimant. It is likely that we will see more cases where the association falls somewhere between the two.

Lee v Ashers Baking Company Limited & Others (Northern Ireland)

Authors

Ceri Fuller

Ceri Fuller

London - Walbrook

+44 (0)20 7894 6583

Key Contacts

Ceri Fuller

Ceri Fuller

London - Walbrook

+44 (0)20 7894 6583

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