Is it directly discriminatory for a Christian baker to refuse to bake a cake containing a message supportive of gay marriage? No, held the Supreme Court in Lee v Ashers Baking Company. The five justices on the Supreme Court were unanimous in their judgement.
The high-profile row began in 2014 when the bakery refused to make a cake with the slogan “Support Gay Marriage”. Ashers Baking is a family-owned business. Its owners are religious Christians. Mr Lee asked them to bake a cake with a photo of Bert and Ernie from Sesame Street and the wording ‘Support Gay Marriage’. They declined to bake it due to their religious beliefs.
Mr Lee brought a discrimination claim through the Northern Irish courts and succeeded at first instance and before the Northern Irish Court of Appeal.
However, this week the Supreme Court overruled those decisions. It held that the Northern Irish Court of Appeal was wrong to conclude that there was direct discrimination on the basis that it is impossible to separate support for same-sex marriage and sexual orientation.
The Supreme Court held that the bakers’ refusal was not because of Mr Lee’s sexual orientation. It was therefore not direct discrimination in the ordinary sense. The Supreme Court was also not satisfied that this was associative direct discrimination, i.e. because Mr Lee was likely to associate with the gay community. For associative discrimination to succeed there needs to be an association with particular persons and discrimination due to that association. That was absent in this case. That the message had something to do with sexual orientation of some people was not sufficient to make out the claim.
The Supreme Court also allowed the appeal on the religious belief or political opinion ground. The Supreme Court relied heavily on the rights relating to religion and expression under Articles 9 and 10 of the European Convention of Human Rights. Those rights include an entitlement not to be forced to express a political opinion in which you do not believe. Infringement of those rights could not be justified by an obligation to supply a cake iced with a message which the bakers profoundly disagreed.
The Supreme Court therefore held that there was no direct discrimination on the grounds of either sexual orientation or religious belief or political opinion.
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