In Lee v Ashers Baking Company Ltd, the Supreme Court has held that a bakery did not discriminate against a gay man when it refused to provide him with a cake bearing a message of support for same-sex marriage. The case has been publicised in national media and has become known as the "Gay Cake" case.
Although this is not an employment case and the litigants are in Northern Ireland, the law is pretty identical when it comes to discrimination, and therefore Paul Burton, Head of Frettens' Employment Team, believes that UK Employers ought to be aware of the outcome.
Mr Lee brought proceedings in a county court for breach of Regs 3(1)(a) and 5 of the Equality Act (Sexual Orientation) Regulations (Northern Ireland) 2006 SR 2006/439, which prohibit sexual orientation discrimination in the provision of goods and services.
What is the background to the 'Gay Cake' case?
Ashers Baking Company Ltd, a Northern Ireland bakery, is a limited company. Two of its directors are Christians and they oppose the introduction of same-sex marriage as they believe that it is contrary to God’s law. In May 2014, Mr Lee, who is a gay man associated with QueerSpace, a volunteer-led organisation for the LGBT community in Northern Ireland, ordered a cake from Ashers Baking Company Ltd, to mark the political momentum towards same-sex marriage legislation.
Mr Lee wanted the cake to be decorated with a picture of the Sesame Street characters Bert and Ernie (the logo for QueerSpace), along with the caption ‘Support Gay Marriage’. His order was initially accepted but he was telephoned a few days later to say that the order could not be fulfilled as the bakery was a ‘Christian business’, and he was given a refund.
Is it discrimination?
The Presiding District Judge, Judge Brownlie, upheld Mr Lee's claims. She found that Ashers Baking Company Ltd treated Mr Lee less favourably on grounds of sexual orientation.
The Judge accepted that the bakery would have supplied a cake without the message ‘support gay marriage’ and would also have refused an order for a cake with the same message if it had been from a heterosexual customer. However, she concluded that the ground for the treatment was Mr Lee's support for same-sex marriage, and this is impossible to dissociable from sexual orientation. They cancelled the order because they oppose same-sex marriage, which is inextricably linked to persons of a particular sexual orientation.
The bakery also lost the subsequent appeal, but on Wednesday they won their appeal at the Supreme Court. Mr Lee said the case had made him feel like a second-class citizen and that he was now concerned about "the implications for all of the gay community".
What does this mean for the law?
Some will regard the ruling - that service providers of any religion, race or sexual orientation can refuse to endorse a message they profoundly disagree with - as a victory for freedom of expression and freedom of ideas. Does this mean that a bakery could refuse to make a bar mitzvah cake because the bakers' owners disagreed with ideas at the heart of the Jewish religion? What about a cake celebrating Brexit or veganism?
Paul Burton, Head of Frettens' Employment Team, says "The legal battle - which has lasted four and a half years and has cost nearly £500,000 so far - has raised questions over equality and freedom of conscience. The original cake was rumoured to have been quoted at a cost of £35. This judgement may raise uncertainty about the application of equality law in commercial environments, regarding what businesses can do and what customers may expect."
As a result of Wednesday's ruling, there are likely to be further cases in which services are refused on the basis of beliefs held by the service providers
The full judgement of the case can be read here, on BAILII, where you can find British and Irish case law & legislation, Lee v Ashers Baking Company Ltd.
At Frettens, all of our solicitors offer a free initial meeting or chat on the phone to answer your questions. If this article raises issues for you or your business, please call us on 01202 499255 and Paul or Kate will be happy to discuss it with you.