Bakery Owners' Refusal to Print 'Support Gay Marriage' on a Cake Is Not Discrimination

...finding in favour of the appellant bakery that they had not discriminated against Mr Lee by refusing to write the message on the cake.

Overview

In May 2014, Mr Lee, a homosexual man, placed an order with Ashers Bakery for a customised cake featuring the slogan 'Support Gay Marriage' to mark the end of 'Northern Ireland Anti-homophobic Week'. Mr Lee had shopped at Ashers before without any problem. 

Having initially taken his order, the owners of the bakery, Mr and Mrs McArthur, subsequently decided that they could not fulfil the order because the slogan on the cake was contrary to their sincerely held religious beliefs, in particular that:

• the only form of full sexual expression which is consistent with Biblical teaching (and therefore acceptable to God) is that between a man and a woman within marriage; and
• the only form of marriage consistent with Biblical teaching (and therefore acceptable to God) is that between a man and a woman.

Mr Lee was given a refund and was able to source a similar cake from another supplier in time for the event.

Mr Lee brought a case against the bakery for discrimination on the grounds of sexual orientation or religious belief or political opinion. This article focuses of the sexual orientation aspect of his claim.

Mr and Mrs McArthur argued that they weren't discriminating against Mr Lee's sexuality when refusing his order - they were simply objecting to the slogan. They argued that they would have refused the order no matter who placed it. 

Both the Northern Ireland County Court and the Northern Ireland Court of Appeal (CoA) found against the bakery and in favour of Mr Lee. Please see our earlier article for further detail about those decisions.

Mr and Mrs McArthur appealed to the Supreme Court (SC) which overturned the CoA's decision, ruling that McArthur's refusal to print the message was not direct discrimination against Mr Lee. Click here to view the full case.

Findings of the Supreme Court

The SC found that the McArthurs' objection was to the contents of the message, and not to Mr Lee himself, his sexual orientation or that of any person or community with which he may have been perceived to associate with. The McArthurs had no objection to serving Mr Lee - what they objected to was the positive act of writing the message on the cake. As the SC put it "The objection was to the message, not the messenger".

The SC also held that:

• Support for gay marriage was not a proxy for any particular sexual orientation. This made the case different to the case of Preddy v Bull where a same sex couple had been refused a room at a bed and breakfast on the basis that they were not married. At that time only heterosexual people could marry, meaning that marriage was indissociable from sexual orientation.
• It was not enough for Mr Lee to show that his order was refused because of his perceived connections to the gay community: "In a nutshell, the objection was to the message and not to any particular person or persons".
• The slogan on the cake was not purely for the benefit of gay or bisexual people - it benefitted all who supported the cause and this is not limited to those with a particular protected characteristic.

Best Practice

Whilst this case relates to the provision of goods and services, it deals with issues that will have an impact in the workplace. How far must an employer go in balancing sometimes competing rights under the Equality Act? Employers may have to make decisions about how far employees are free to express or hold their religious views, if these conflict with the rights of others or the aims or ethos of the organisation.

For more information please contact Michael Halsey in our Employment Law team on 0207 665 0842.