No Direct sexual orientation discrimination for refusing to make “gay cake”
In a recent case (Lee v Ashers Baking Co Limited and others )the Supreme Court held that a Christian bakery did not commit direct sexual orientation discrimination in the provision of goods and services when it refused to fulfil a cake order with a message in support of same sex marriage.
Mr Lee, a gay man, placed an order with bakery chain Ashers Baking. He requested a cake design with the phrase “support gay marriage.” The bakery’s directors are devout Christians who oppose the introduction of same sex marriage. Mr Lee was informed that the company could not fulfil the order because of the directors ’ religious belief.
Mr Lee brought a successful civil claim in the county court for discrimination in the provision of goods and services. The bakery appealed unsuccessfully to the Court of Appeal. The bakery appealed to the Supreme Court.
The Decision of the Supreme Court
The Supreme Court assessed whether there had been discrimination on the grounds of either sexual orientation or political belief (ground for discrimination in Northern Ireland but not the rest of the UK).
The Supreme Courts’ decision focused on three areas:
The first was whether there was discrimination on the ground of sexual orientation. It held that the refusal was not based on the sexual orientation of the customer but rather due to an objection to the message. It found that any customer of any sexual orientation who made the request would have been given the same response.
The second area was the Northern Irish courts decision that there had been associative discrimination which the Supreme Court disagreed with on the ground that it was not enough the customer was likely to associate with the gay community, association with the concept of a protected characteristic is not protected.
The final area was whether there had been discrimination on ground of political view. While it could be assumed that the view requested to be on the cake reflected that of the customer the Supreme Court relied heavily on the Art 9 and 10 of the European Convention on Human Rights when finding that an infringement of religious expression could not be justified by the request to supply a cake which promoted a message the bakers deeply disagreed with. Further it was not the political opinion of the customer which the bakers objected, but baking a cake which promoted an opinion they objected to.
What does this mean for employers?
This judgement does not mean that employers and service providers can discriminate on the ground of sexual orientation but that fundamentally the discrimination framework is there to protect people rather than opinions. This case is focused around a fundamental issue of balancing freedom to express religion and the right not to be discriminated based on sexual orientation. It is important that employers get this balance right to avoid potential action against them.
The decision of the Supreme Court suggests that there may be narrow circumstances in which an individual can object to providing a service where he or she believes that to do so is contrary to his or her beliefs.
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