Lee v Ashers Baking Co Limited
You may have seen in the news over the past few weeks the political debate in Ireland surrounding same-sex marriage and the momentous moment on 22 May 2015 when Ireland voted yes to same sex marriage. There were strong views and detailed arguments on both sides of the debate and Colin Farrell summed up the question well when he said “I can’t see how a man and a man, or a woman and a woman, declaring love and declaring faithfulness until death do us part could be a threat”. Ireland agreed with him.
However, the law in Northern Ireland has not changed and it remains unlawful for homosexual couples to marry there. Northern Ireland is now the last part of the United Kingdom to maintain this position but in the recent case of Lee v Ashers Baking Co Limited  the issue of sexual orientation discrimination has once again come to the fore in a very well-timed case looking at the rights of homosexuals when using services and facilities provided for the general public.
Although Northern Ireland still prohibits same sex marriage, there have been several votes within the Assembly in recent years asking whether this should change. Mr Lee was a member of QueerSpace, a volunteer led organisation for the lesbian, gay, bisexual and transgender community in Northern Ireland. In May 2014, shortly after another vote in the Assembly had decided against introducing same-sex marriage, he was attending a party to mark the end of Northern Ireland’s anti-homophobia week and to celebrate the political momentum that was taking hold for reform of the laws in this area.
Mr Lee ordered a cake from Ashers bakery with the logo of QueerSpace, a picture of Bert and Ernie (the well loved Sesame Street characters) and a slogan which said “Support Gay Marriage”. The order was initially accepted by the bakery but Mr Lee then received a telephone call saying that the bakery had to cancel the order because “it was a Christian business and should not have taken the order”.
Although the name of the bakery comes from the book of Genesis in the Bible and refers to the “Bread of Asher”, the company has no religious objectives in its Memorandum and Articles of Association nor in its advertising or terms and conditions. They are not a church or faith-led organisation and Mr Lee was not aware that there was a possibility that they could turn down his order.
Mr Lee argued that the decision by the bakery not to bake his cake was discriminatory on the grounds of his sexual orientation or political opinion and religious belief.
The bakery owners argued that by making the cake they would have been betraying their faith and failing to live in accordance with what God expected of them. They decided individually, and as a family, that what Mr Lee wanted to be printed on the cake was against their Christian beliefs and they could not promote same-sex marriage by making the cake. The mother went so far in the hearing to suggest that she was not sure or did not know at all that there was even a law which prohibited discrimination on the grounds of sexual orientation and/or religious beliefs or political opinion.
Although this case was heard in Northern Ireland, the legal provisions are replicated in the Equality Act 2010 and the case specifically referred to a recent case heard in the Supreme Court in England. The case clearly shows the issues businesses in the UK could face and how the courts are likely to react to them and is a clear guide for companies this side of the Irish sea.
The law is clear that:
a person discriminates against another if, on the grounds of sexual orientation, they treat them less favourably than they treat or would treat other persons;
a person discriminates against another if, on the grounds of their political opinion or religious belief, they treat them less favourably than they treat or would treat other persons;
it is unlawful for any person concerned with the provision of goods, facilities or services to the public to discriminate against a person who seeks to obtain or use those goods, facilities or services by refusing or deliberately omitting to provide him with any of them; but
there is an exception for those organisations which have as their purpose to practice/advance/teach a religion or belief but not if that organisation has as its main or sole purpose a commercial aim.
The court in this case considered all of the arguments carefully and concluded that the actions of the bakery were discriminatory on the grounds of sexual orientation and political opinion/ religious belief. The court rejected an argument by the bakery that the refusal was not discrimination on the grounds of Mr Lee’s sexual orientation because they would have refused to provide a cake with that slogan to anyone, not just someone who was homosexual themselves. They also tried to argue that they had not been aware that Mr Lee was homosexual and it had been the message itself which had led to the decision. The court did not like this argument and found that the message itself was enough to give them an idea that Mr Lee was either homosexual himself or was associated with someone who was homosexual, which triggered the protection under the law. They also found that the correct comparator was not a heterosexual person who asked for a cake supporting same-sex marriage, but a heterosexual person who asked for a cake supporting heterosexual marriage. They found that the latter request would have been agreed by the bakery and therefore their actions were discriminatory.
The court also held firmly that the bakery could not make use of the exception in the legislation which covers organisations with the purpose of practicing, teaching or advancing a religion. The bakery did not meet this definition and whilst the owners and some of the employees were Christian, they were a minority within the workforce and the bakery was not entitled to special treatment.
Before reaching their final decision the court also had to consider whether enforcing these laws on discrimination against the bakery was contrary to the human rights of those who worked in the bakery.
The Respondents had argued that the situation engaged their right to respect for private and family life, right to freedom of thought, conscience and religion, right to freedom of expression and affected the prohibition of discrimination and the prohibition of abuse rights. They argued that to read the domestic laws alongside these rights meant the court should carry out a proportionality assessment to consider how all of the respective rights could be accommodated and the bakery had a right not to be required to express a viewpoint they were not comfortable with. In other words, the bakery wanted the court to find that they did not have to comply with the laws on discrimination because in this particular circumstance, it went against their religion. They were therefore arguing that their right to their religious beliefs should be placed above Mr Lee’s right not to be discriminated against on the grounds of his sexual orientation.
The court again disagreed with the bakery’s approach. Whilst there were competing rights under the European Convention on Human Rights, the limits that were placed on these rights by the domestic legislation were necessary in a democratic society and were a proportionate means of achieving the legitimate aim of protecting the rights and freedoms of Mr Lee, and others in the same situation as him. The bakery could not rely on the fact that they had the right to practice their own religion to justify discrimination against Mr Lee and homosexuals. The court referred back to a decision that had been given in the English courts and confirmed that very weighty reasons are needed to justify discrimination on the grounds of sexual orientation and religions should not be used as the reason for this.
So in summary, the bakery owners could not rely on their religious belief to justify discriminating against Mr Lee by refusing to make him his cake.
The outcome of this case adds to the case of Bull and another v Hall and another which was heard in the English Supreme Court in 2013. That case found that Christian hotel owners could not refuse to allow a homosexual couple in a civil partnership to rent a double room in their hotel. The arguments were very much the same and reading the cases together helps to clearly demonstrate that businesses need to be very alive to how they offer services and relying on a Christian, or any other religious, belief to refuse to provide a service is unlikely to be seen in a favourable light. It is not just discrimination against employees that can get a company into hot water: discrimination against the public, clients and customers is often not at the forefront of your mind but carries just the same level of responsibility.
I have heard this week that the case is going to be appealed by the bakery so it is possible that there may be a further update to come on this case and the complex issues which surround it; however, for the moment the prohibition on discrimination in this way seems here to stay.
It seems appropriate to finish this article with a quote from Lady Hale from the earlier Supreme Court case which sums up perfectly why the discrimination laws are so important. She said “to permit someone to discriminate on the ground that he did not believe that persons of homosexual orientation should be treated equally with persons of heterosexual orientation would be to create a class of people who were exempt from the discrimination legislation. We do not normally allow people to behave in a way which the law prohibits because they disagree with the law”.