The “gay cake” case: Ashers Baking loses its appeal

Slightly updated version of the note posted earlier.

The background

Ashers Baking is owned by the McArthur family. It offered to bake cakes iced with a graphic of the customer’s own design. Gareth Lee is gay; and to mark the International Day Against Homophobia and Transphobia, in May 2014 he ordered a cake from Ashers bearing the slogan “Support Gay Marriage” and a picture of the Sesame Street puppets Bert and Ernie. Ashers initially accepted his order but Mrs Karen McArthur subsequently telephoned him to say that his order could not be fulfilled because Ashers was a Christian business and that, with hindsight, she should not have taken the order in the first place. She apologised and refunded his money.

Before Belfast County Court, in Lee v Ashers Baking Co Ltd & Anor [2015] NICty 2 Mr Lee had claimed that he had been discriminated against contrary to the provisions of the Equality Act (Sexual Orientation) Regulations (Northern Ireland) 2006 and/or the Fair Employment and Treatment (Northern Ireland) Order 1998. District Judge Brownlie found for Mr Lee, concluding that Ashers Baking was liable under the 2006 Regulations for the unlawful acts of its two directors, Mr and Mrs McArthur, and that they, in turn, were liable under Regulation 24 for aiding Ashers Baking to act unlawfully. As a result of their actions, the company had discriminated unlawfully against Mr Lee. They appealed and the matter came before the Court of Appeal in Belfast by way of case stated.

The decision of the Court of Appeal

In Lee v McArthur & Ors [2016] NICA 29the Court of Appeal [Morgan LCJ, Weatherup and Weir LJJ] held that Ashers Baking Company had directly discriminated against Gareth Lee on grounds of sexual orientation by refusing to make a cake supporting same-sex marriage. It further held that the relevant legislation was not incompatible with Articles 9, 10 or 14 ECHR.

Morgan LCJ explained that District Judge Brownlie had reached the following conclusions:

  1. The appellants had the knowledge or perception that the respondent was gay and/or associated with others who were gay;
  2. What the respondent wanted the appellants to do would not require them to promote or support gay marriage which was contrary to their deeply held religious beliefs;
  3. The appellants cancelled the order because they opposed same-sex marriage which is inextricably linked to sexual relations between same-sex couples, which is a union of persons having a particular sexual orientation; and
  4. The respondent did not share the particular religious and political opinion which confined marriage to heterosexual orientation.

District Judge Brownlie had concluded that the appellants’ actions amounted to direct discrimination contrary to Regulation 5(1) of the 2006 Regulations. Moreover, she stated that, even if she had been persuaded that the McArthurs had not been aware of Mr Lee’s religious belief and/or political opinion, she would have found that they had discriminated against him by treating him less favourably on the grounds of their own religious beliefs and political opinion. She considered that she was required to read down the 2006 Regulations and the 1998 Order so as to include reasonable accommodation for the manifestation of the appellants’ beliefs; however, the relevant anti-discrimination provisions were necessary in a democratic society and were a proportionate means of achieving the legitimate aim of protecting Mr Lee’s rights and freedoms. To do otherwise would be to allow religious belief to dictate what the law is. The McArthurs were entitled to continue to hold their genuine and deeply held religious beliefs and to manifest them, but that had to be done in accordance with the law – and that included not manifesting them in the commercial sphere if the manner of doing so was contrary to the rights of others. In any event, she found that the anti-discrimination provisions in the relevant legislation were a proportionate interference permitted under Article 10(2) ECHR.

The questions

The questions included in the case stated were set out in the full judgment at [20]. The Court chose to answer two of them: whether it had been correct to hold that the appellants had discriminated against the respondent directly on grounds of sexual orientation contrary to the Equality Act (Sexual Orientation) Regulations (NI) 2006 and directly on grounds of religious belief or political opinion contrary to the Fair Employment and Treatment (NI) Order 1998 [20(a) and (b)] and whether, as a matter of law, it was unnecessary to read down or disapply the provisions of the 2006 Regulations or the 1998 Order to take account of the appellants’ protected Article 9 right to hold and manifest their genuinely held religious belief about the nature of marriage [20(d)].

His Lordship noted that Northern Ireland had a large and strong faith community many of whom took an active part in commerce; and it was important that such people should continue to contribute to the well-being of the Northern Ireland economy and that there should be no chill factor to their participation [49]. He noted, however, that there was a long history of discrimination against the LGBT community: homosexual acts in private between consenting males were criminalised until 1985 and gay men were reluctant to expose their sexuality and some were subjected to blackmail and other intimidation. The potential for conflict between the rights of the LGBT community and the religious community had, unfortunately, long been a feature of public debate in Northern Ireland and the strongest opposition to the decriminalisation of homosexual acts between consenting males came from the religious community. It was obviously important that the LGBT community should feel able to participate in the commercial life of the community freely and transparently [50].

Direct discrimination on the grounds of sexual orientation

In Shamoon v Chief Constable [2003) UKHL 11 there had been an allegation of direct discrimination on the grounds of sex in which the statutory provisions mirrored those in the present case. Lord Nicholls had indicated that the statute “contained essentially a single question: did the claimant, on the prescribed ground, receive less favourable treatment than others?” [53].

In Bull v Hall [2013] UKSC 73, in which Mr & Mrs Bull, who were devout Christians, had declined to honour a booking by civil partners for a double room at their hotel because they only provided double rooms to heterosexual married couples, the majority had concluded that the concept of marriage being applied by them was the Christian concept of the union of one man and one woman, a criterion indistinguishable from sexual orientation. The discrimination was therefore direct, in that the difference in treatment was based on a criterion which was either explicitly that of sex or necessarily linked to a characteristic indistinguishable from sexual orientation [55].

Counsel for the McArthurs had submitted that in order to establish direct discrimination it was necessary to establish some protected personal characteristic and that such a characteristic could not be established by a difference in treatment in respect of a message on a cake [57]. The Court did not accept that. The benefit from the message on the cake could only accrue to gay or bisexual people. The McArthurs would not have objected to a cake carrying the message “Support Heterosexual Marriage” or “Support Marriage”. The order was cancelled because the McArthurs would not provide a cake with a message supporting a right to marry for those of a particular sexual orientation. This was a case of association with the gay and bisexual community and the protected personal characteristic was the sexual orientation of that community. Accordingly, that was direct discrimination [58].

The human rights arguments

Under the 2006 Regulations it was unlawful for a person to discriminate on the grounds of sexual orientation in the provision of goods, facilities or services to the public; however, Regulation 16 made specific provision for organisations relating to religion or belief so as to ensure that they should not find that certain specified activities were rendered unlawful. The structure implemented the proposal to outlaw sexual orientation discrimination in the provision of goods and services in Northern Ireland set out in ‘Getting Equal’, which expressly stated that it was not acceptable for someone to be discriminated against in the provision of goods and services because of his or her sexual orientation [59].

It was submitted, however, that in light of the impact upon the Convention rights of the appellants it was necessary either to read down the provisions of the 2006 Regulations so as to respect those rights or alternatively to disapply the provisions of the 2006 Regulations on the basis that they were incompatible with the appellants’ Convention rights [60.

The appellants contended, in addition, that there was an additional factor – ‘forced speech’ – which engaged their rights under Article 10 ECHR [67]. The Court of Appeal concluded, however, that there was nothing in the case arising under Article 10 ECHR that did not already arise under Article 9 [71]. The proportionality assessment pointed firmly to the conclusion that the 2006 Regulations should be interpreted in accordance with their natural meaning [72].

His Lordship then turned to the constitutional point raised by the Attorney General for Northern Ireland [73], which need not concern us here. On the issue of religious belief or political opinion, however, the Attorney General argued that

  • a requirement, underpinned by civil liability, to publish or enunciate a theologically loaded political statement constituted less favourable treatment of those persons whose religious beliefs or political opinions were opposed to that statement in comparison with those persons who shared or who were indifferent to it; and
  • insofar as the 2006 Regulations and the 1998 Order were properly interpreted as requiring, on pain of incurring civil liability, a person to enunciate or produce a theologically loaded political statement to which s/he objected, they were invalid to that extent by virtue of s 24 of the Northern Ireland Act 1998 (as respects the 2006 Regulations) and section 17 of the Northern Ireland Constitution Act 1973 (as respects the 1998 Order) [92].

The Court disagreed [99-104].

His Lordship preferred to ask the question: did the claimant, on the prescribed ground, receive less favourable treatment than others? [94]. In his view, the answer was ‘yes’. Those who refused goods and services to those who accepted same-sex relations and supported same sex marriage were treated by the legislation in the same manner as the appellants had been treated. They might not be treated in the same way by those holding opposing religious beliefs or political opinions but the legislation treated them all the same [99].

Neither the 1998 Order nor the 2006 Regulations treated the appellants less favourably. The legislation prohibited the provision of discriminatory services on the ground of sexual orientation. The McArthurs were caught by the legislation because they were providing such discriminatory services. A supplier might provide a particular service to all or to none but not to a selection of customers based on prohibited grounds. In the present case the appellants might have elected not to provide a service that involved any religious or political message. What they could not do was to provide a service that only reflected their own political or religious message in relation to sexual orientation [100].

Conclusion

For the reasons given the Court answered only two of the questions in the case stated [105]:

  • “Was I correct as a matter of law to hold that the appellants had discriminated against the respondent directly on grounds of sexual orientation contrary to the Equality Act (Sexual Orientation) Regulations 2006?” – Yes;
  • “Was I correct as a matter of law to hold that it was not necessary to read down or display the provisions of the 2006 Regulations [or the 1998 Order] to take account of the appellants’ protected right to hold and manifest their genuinely held religious belief that marriage is, according to God’s law, between one man and one woman, pursuant to Article 9 ECHR?” – It was not necessary to read down or disapply the provisions of the 2006 Regulations.

Appeal dismissed.

Cite this article as: Frank Cranmer, "The “gay cake” case: Ashers Baking loses its appeal" in Law & Religion UK, 24 October 2016, http://www.lawandreligionuk.com/2016/10/24/the-gay-cake-case-ashers-baking-loses-its-appeal/

20 thoughts on “The “gay cake” case: Ashers Baking loses its appeal

  1. As a POI rather than an opinion
    would it be legal for a customer to request the decoration of a cake with the legal (in the UK) symbols of a Swastika and the SS flashes (presumably yes) but on the other hand would the cakemaker be within his or her rights to decline the order (no idea)

  2. In the early stages of this case, the Ashers argued that they had no knowledge of the customer’s sexuality and that this was not relevant to their case. As a heterosexual man who might conceivably have ordered such a cake, I find Morgan LCJ’s summary of District Judge Isobel Brownlie’s first conclusion ‘The appellants had the knowledge or perception that the respondent was gay and/or associated with others who were gay’ both offensive and troubling. If they did not know that he himself was gay (and he did not tell them that he was), how might they have ‘perceived’ this except by some stereotype? The fact that he ‘associated with others who were gay’ is, of course, irrelevant to the point being argued: I dare say most of us do the same. Rather than ignore this issue, Declan Morgan should have dealt firmly with the discriminatory assumptions underlying this conclusion, which is further confused by her and his affirmation that this is a matter of religious belief or political opinion: it may or may not stem from either. There are atheists who oppose homosexuality; there are advocates who wish to keep the issue out of the political arena.

    But I think I had better wait for the full judgement before commenting further….

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  5. It seems that just about everyone has missed the point in this case. At the risk of appearing arrogant, this case does NOT involve the refusal of a service provider to provide an advertised service to someone because that customer was gay, but rather a far right, ultra-conservative, anti-liberal baker vetoing the desired expression of a PRO-liberal sentiment- SUPPORT GAY MARRIAGE on a cake. An ideological clash between ultra-conservative values on the one side, and the expression of liberal ones on the other.It therefore amounts to POLITICAL discrimination – which is ALSO unlawful. It was indeed the message, NOT the customer. The Mc’Arthurs have acted to confirm that they will allow only messages on their cakes they approve of- ultra-conservative ones- and will veto liberal ones. As I said, a clear case of unlawful POLITICAL discrimination. RELIGION HAS NOTHING TO DO WITH IT.

    PS. There is no such thing as a Christian company. A Ltd company has an existence separate and distinct from the ‘controlling minds that set it up. The McArthurs religious and political views are their own, and not the ltd company’s. The ltd company has no mind and therefore cannot have a religion, or any political adherence.

    • I wouldn’t be so presumptuous as to suggest that Morgan LCJ has missed the point.

      But on the more interesting point that ‘There is no such thing as a Christian company’, that’s what I’ve always assumed as well and it makes some kind of logical sense. However, in Exmoor Coast Boat Cruises Ltd v Revenue & Customs [2014] UKFTT 1103 (TC) TJ Mosedale held (somewhat to my surprise) that

      “71. My conclusion from Pine Valley is that a company has human rights if and to the extent it is the alter ego of a person (or, potentially, a group of people). Therefore, it must be seen as being in the shoes of that person and must possess the same human rights because any other decision would deny that person his human rights.

      72. Therefore, while it is ludicrous to suggest a company has a religion, or private life or family, nevertheless a company which is the alter ego of a person can be a victim of a breach of A9 (the right to manifest its religion) if, were it not so protected, that person’s human rights would be breached.”

      Presumably the McArthurs might argue that Ashers Baking was their alter ego. But, of course, Exmoor Coast Boat Cruises Ltd was only a First-tier Tribunal case – and certainly not binding on the NI Court of Appeal.

      • Thanks for the reference. Another interesting part of Exmoor Coast Boat Cruises Ltd is:

        66. In Pine Valley Developments Ltd and others [1991] ECHR 12742/87 two appellant companies and the owner/director of those companies claimed a breach of the Convention. The ECHR found that there was a breach of A1P1 (the right to property) combined with A14 (the right not to be discriminated against) against one of the companies and the owner of the companies. All the court said about the corporate status of this ‘victim’ was:

        “[42] As to the merits of the pleas, the Court would make at the outset the general observation that Pine Valley and Healy Holdings were no more than vehicles through which Mr Healy proposed to implement the development for which outline planning permission had been granted. On this ground alone it would be artificial to draw distinctions between the three appellants as regards their entitlement to claim to be ‘victims’ of a violation.”

        67. This is a clear statement by the Court that a company could be a victim of a breach of human rights. This means that the Court ruled (albeit without hearing argument) that a company can have human rights: and as I have said the Court went on to find that the company was a victim of a breach of its human rights.

        68. The basis of the Court’s decision in this case was clearly that the companies concerned were the alter egos of their owner. That is true in this case too.

    • We await the order by a gay activist of a “Support Gay Marriage” cake from a Muslim confectioner but at the same time we are not holding our breath

      • Surely “by a gay activist” is irrelevant?

        A key point in Ashers is whether the law requires a shop to provide a service or something it does not stock that is against the proprietors’ personal beliefs and values. Could someone demand that the local newsagent specially orders a soft-porn magazine if the proprietors do not stock them on grounds of their beliefs and values?

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  7. IMHO – the easiest way around this going forward and avoid losing a court case is for the business to say “I can’t get any of our staff to decorate the cake with the wording you require due to their religious beliefs; otherwise we would be pleased to do what we can to serve you”. Make it about the individuals rather than the business refusing business. This way the courts would then not be able to attack the business for discrimination and would then need to attack the individual employee’s human rights – which rights would ultimately be supported by the court as the employee is not transacting commercially with the customer but the business is.

  8. On further reflection, the following occurred to me.

    Suppose a customer of Afro-Caribbean extraction orders a cake with the slogan “Black Lives Matter” and a picture of Martin Luther King, in celebration of his commemoration observed in the US on the third Monday in January. The bakers take the order, then have second thoughts and say, “No, sorry: we’ve thought about this and we’re afraid we disagree. We can’t do it because our religion teaches us that all lives matter equally and we think your message is divisive. So here’s your money back”.

    I wonder what would have happened then?

  9. First they came for the B&B owners
    but I was not a B&B owner
    Then they came for the adopters
    but I was not an adopter
    Then they came for the bakers
    but I was not a baker so again I did nothing
    Then They Came For Me

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