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The way the cookie crumbles - The 'gay cake' discrimination case

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About Will

By Will Macauley

On 10 October 2018, the Supreme Court handed down judgment in Lee v Ashers Baking Company, better known as the ‘gay cake’ case. The case concerned the refusal by a bakery business with devout Christian values, Ashers, to ice a cake for a gay customer, Mr Lee, with the phrase ‘Support Gay Marriage’. Among other questions, the Court sought to answer whether this refusal should be considered discriminatory on the grounds of Mr Lee’s sexual orientation.  

In the first instance, the District Judge hearing the case held that the refusal was direct discrimination, as Ashers had treated Mr Lee less favourably than they would treat others on the basis of his sexual orientation. The Court of Appeal agreed with the District Judge’s finding of direct discrimination, but reconsidered part of the reasoning. That Court felt that the less favourable treatment was in fact on the basis of the sexual orientation of the gay and bisexual community, and Mr Lee’s association with them through the cake’s message. 

Overturning the decisions of both lower courts, the Supreme Court unanimously held that the refusal was not discriminatory on the ground of sexual orientation. The basis of their decision stemmed from the Supreme Court’s distinction between the message and the messenger; Ashers did not refuse because Mr Lee was gay or associated with the gay and bisexual community, but because the owners of Ashers did not wish to express a view on a matter of public policy with which their Christian beliefs did not accord. On the facts, the Court could not find sexual orientation discrimination.

While Lee v Ashers is not a case involving employment, it will likely have an impact on the consideration of discrimination claims, which themselves often arise out of employment. This case emphasises the importance of taking care to scrutinise whether the cause of less favourable treatment really is indissociable from a specific protected characteristic because liability for discrimination can turn on this point. It remains to be seen whether there will be subsequent cases considering actions taken on the basis of a person’s beliefs, and to what extent such actions can be discriminatory.

As a footnote, people are protected against discrimination on the basis of their political opinions in Northern Ireland. This is not the case in England and Wales. The Court were willing to consider finding discrimination on the ground of Mr Lee’s political opinion. They felt that the message on the cake was indissociable from his political opinion, and so refusing to make the cake could be discriminatory. Ultimately, the Court also declined to do this, feeling that to require Ashers to express (via the cake) an opinion with which they fundamentally disagree would infringe their ECHR rights to freedom of thought, conscience and religion and to freedom of expression.

Our Employment team has a wealth of experience handling workplace discrimination claims. If you need help with a discrimination issue, please do not hesitate to get in touch with a member of our team.