Lee v Ashers Baking Company Ltd & Ors (Northern Ireland) [2018] UKSC 49

A Christian-owned bakery in Northern Ireland refused to bake a cake iced with the message 'Support Gay Marriage' for a gay customer. The Supreme Court held this was not unlawful discrimination on grounds of sexual orientation or political opinion, as the objection was to the message, not the man.

Facts

Mr and Mrs McArthur, devout Christians, run Ashers Baking Company Ltd in Northern Ireland. They hold sincere religious beliefs that marriage is only acceptable to God when between a man and a woman. The bakery offered a ‘Build-a-Cake’ service, allowing customers to request bespoke designs and inscriptions.

Mr Lee, a gay man and volunteer with QueerSpace, ordered a cake on 8 or 9 May 2014 to be iced with a coloured picture of ‘Bert and Ernie’, the QueerSpace logo, and the headline ‘Support Gay Marriage’. The cake was intended for a private event marking the end of Northern Ireland anti-homophobia week. Mrs McArthur initially took the order without objection but, after reflection, the McArthurs decided they could not in conscience produce a cake bearing that slogan. Mrs McArthur telephoned Mr Lee, explaining the order could not be fulfilled, apologised, and refunded him.

Supported by the Equality Commission for Northern Ireland, Mr Lee brought a claim for direct discrimination on grounds of sexual orientation, religious belief and political opinion. The District Judge found direct discrimination on all three grounds and awarded £500 damages. The Northern Ireland Court of Appeal upheld the decision on grounds of sexual orientation as ‘associative’ direct discrimination. The bakery sought to appeal, and the Attorney General for Northern Ireland made references on devolution issues.

Issues

The substantive issues were:

• Whether refusing to bake the cake amounted to direct discrimination on grounds of sexual orientation under the Equality Act (Sexual Orientation) Regulations (Northern Ireland) 2006 (‘SORs’).
• Whether the refusal amounted to direct discrimination on grounds of religious belief or political opinion under the Fair Employment and Treatment (Northern Ireland) Order 1998 (‘FETO’).
• Whether, if either claim was made out, the McArthurs’ rights under articles 9 (freedom of thought, conscience and religion) and 10 (freedom of expression) of the European Convention on Human Rights required the legislation to be read down.

Procedural issues also arose regarding the Supreme Court’s jurisdiction to hear the appeal and the Attorney General’s references under paragraphs 33 and 34 of Schedule 10 to the Northern Ireland Act 1998.

Arguments

Appellants (Bakery)

Mr Scoffield QC argued that the bakery’s refusal was directed at the message, not the messenger. Anyone, regardless of sexual orientation, requesting that message would have been refused, and the bakery would have supplied Mr Lee with any other cake. Support for gay marriage was not indissociable from sexual orientation, since people of all orientations support gay marriage. He further argued that compelling the McArthurs to ice a message contrary to their sincere religious beliefs would breach their rights under articles 9 and 10 of the Convention.

Respondent (Mr Lee / Equality Commission)

Mr Allen QC contended that this was a case of direct or associative discrimination on grounds of sexual orientation, since the benefit of the message would accrue to gay people, and that support for gay marriage was indissociable from sexual orientation. He also argued there was no jurisdiction for the Supreme Court to hear the appeal, given the finality provisions in article 61(7) of the County Courts (Northern Ireland) Order 1980.

Judgment

Sexual Orientation Claim

Lady Hale (with whom Lord Mance, Lord Kerr, Lord Hodge and Lady Black agreed) held there was no direct discrimination on grounds of sexual orientation. The District Judge had found the bakery cancelled the order because they opposed same sex marriage on religious grounds, not because of Mr Lee’s sexual orientation. The objection was to the message, not the messenger. People of all sexual orientations may support gay marriage, so support for gay marriage is not a proxy for any particular sexual orientation, and the ‘indissociability’ principle from James v Eastleigh Borough Council [1990] 2 AC 751 and Preddy v Bull [2013] UKSC 73 did not apply.

The Court of Appeal’s reliance on associative discrimination (drawing on Coleman v Attridge Law) was misplaced: there was no specific identified person whose protected characteristic was the reason for the less favourable treatment, and the bakery had previously employed and served gay people without discrimination. Lady Hale stated that ‘the objection was to the message and not to any particular person or persons.’

Political Opinion Claim under FETO

The Court accepted that support for gay marriage was a political opinion within the meaning of FETO. However, FETO requires less favourable treatment on the grounds of the religious belief or political opinion of someone other than the discriminator. To the extent the District Judge held the bakery had discriminated because of the McArthurs’ own beliefs, she was wrong.

Although there was a closer association between Mr Lee’s political opinion and the message, raising potential indissociability, the Convention rights were determinative.

Convention Rights

Articles 9 and 10 protect the right not to be compelled to manifest a belief or express an opinion one does not hold. The Court relied on Buscarini v San Marino, Commodore of the Royal Bahamas Defence Force v Laramore, and RT (Zimbabwe) v Secretary of State for the Home Department. Lord Dyson’s observation in RT (Zimbabwe) was cited:

Nobody should be forced to have or express a political opinion in which he does not believe.

Compelling the bakery to ice the message would force them to express a view they profoundly opposed. FETO must be read, under section 3(1) of the Human Rights Act 1998, so as not to compel suppliers of goods and services to express messages with which they disagree without justification. No such justification existed here.

Procedural / Jurisdictional Issues

Lord Mance held that section 42(6) of the Judicature (Northern Ireland) Act 1978 permitted appeal where validity of FETO was in issue. He further held that the Court of Appeal had erred in refusing to make a reference under paragraph 33 of Schedule 10 to the Northern Ireland Act 1998: proceedings remained on foot until the order was sealed and filed. Article 61(7) finality did not preclude an appeal where a procedural error of this kind had occurred.

Implications

The judgment establishes a clear distinction in discrimination law between refusing to provide goods or services because of a customer’s protected characteristic and refusing to produce a particular message that the supplier finds objectionable. As Lady Hale emphasised, citing the divisions in the US Supreme Court’s Masterpiece Cakeshop decision, the bakery would have refused to supply that particular cake to anyone, whatever their personal characteristics.

The decision affirms that:

• Direct discrimination on grounds of sexual orientation requires the protected characteristic of the customer (or someone closely associated) to be the reason for the less favourable treatment, not the content of a message disliked by the supplier.
• The ‘indissociability’ principle applies where the criterion used is an exact proxy for a protected characteristic — support for gay marriage is not such a proxy.
• FETO does not prohibit discrimination motivated by the discriminator’s own religious belief; the relevant belief or opinion must be that of someone other than the discriminator.
• Articles 9 and 10 of the Convention protect against ‘compelled speech’ — being forced to express or promote a view one does not hold.

The decision matters to service providers with sincerely held religious or political beliefs, to consumers seeking bespoke services involving expressive content, and to the development of equality law in balancing protection against discrimination with rights of conscience and expression. The Court was careful not to minimise the very real problem of discrimination against gay people, with Lady Hale stressing that denying service because of a person’s protected characteristic remains ‘deeply humiliating, and an affront to human dignity’. The case is limited to its facts: the refusal concerned the message, not the customer, and the bakery was happy to serve gay customers in other ways. It does not authorise refusals of service based on a customer’s identity.

Verdict: The Supreme Court allowed the appeal. The bakery’s refusal to produce a cake iced with the message ‘Support Gay Marriage’ did not constitute unlawful direct discrimination on grounds of sexual orientation under the SORs, nor unlawful discrimination on grounds of religious belief or political opinion under FETO. To the extent that FETO might otherwise impose liability, it had to be read compatibly with the McArthurs’ rights under articles 9 and 10 of the Convention, which protect against compelled expression of beliefs one does not hold.

Source: Lee v Ashers Baking Company Ltd & Ors (Northern Ireland) [2018] UKSC 49