Bakery did not discriminate when refusing to bake a cake bearing a slogan in support of gay marriage

An in-depth look into the recent case of the Supreme Court overturning a decision made by the Court of Appeal of Northern Ireland.

In Lee v Ashers Baking Company Limited and others, the Supreme Court has overturned a decision of the Court of Appeal of Northern Ireland and held that a Christian-owned bakery had not directly discriminated on the ground of sexual orientation, religious belief or political opinion in refusing to prepare a cake with the slogan "Support Gay Marriage" for a gay customer.

Mr Lee, who is gay, ordered the cake for an event run by Queerspace, a Northern Irish  organisation for lesbian, gay, bisexual and transgender people. The owners of Ashers oppose same-sex marriage and believe that marriage must be between a man and a woman. They cancelled the order and gave Mr Lee a refund. Mr Lee brought proceedings for direct discrimination on grounds of sexual orientation under the Equality Act (Sexual Orientation) Regulations (Northern Ireland) 2006, and for direct discrimination on grounds of religious belief or political opinion under the Fair Employment and Treatment (Northern Ireland) Order 1998.

The county court found that the bakery had discriminated against Mr Lee on the ground of sexual orientation. It found that the bakers had not cancelled the order because Mr Lee was gay, but the court came to this decision on the basis that support for gay marriage is indissociable from homosexuality. The Northern Irish Court of Appeal did not agree with this, commenting that heterosexuals may support gay marriage and homosexuals may oppose it. The Court of Appeal did however uphold the finding of discrimination, holding that this was a case of discrimination by association: Mr Lee had been less favourably treated not because of his own sexuality, but because of his association with gay people.

The Supreme Court overturned this decision and held that there had been no discrimination. Lady Hale commented that it was not enough for the less favourable treatment to have "something to do with the sexual orientation of some people". For discrimination by association to occur, there must be a closer connection than that. The Supreme Court noted that the facts showed that the order had not been cancelled because Mr Lee is gay. Indeed, a heterosexual person who had placed the same order would also have been refused. The county court had heard evidence that gay people worked in and were customers of the bakery. The reason for the cancellation was an objection to same-sex marriage on religious grounds.

The Supreme Court held that obliging the bakers to prepare the cake could have been in contravention of the European Convention on Human Rights (ECHR) right to freedom of religion and belief as they would have had to manifest a belief which they did not hold. It would also have contravened the ECHR right to freedom of expression, which includes the right not to express an opinion.

This is a case concerning potential discrimination in the provision of goods and services based on laws which apply in Northern Ireland. Lady Hale's comments on discrimination by association are perhaps the most interesting aspect of this judgment for employers. She deliberately avoided defining how close the association must be for discrimination by association to occur, but makes clear that in this case, there was not sufficient connection between the treatment and the protected characteristic of sexual orientation. In this case, it was the message on the cake which lay behind the less favourable treatment and not the sexuality of the person who ordered it or anyone associated with him.