Do Religious Beliefs Override Discrimination Laws? The Example of the 'Gay Cake' Row

In the widely reported case of Lee v Ashers Baking Co Ltd, the Northern Ireland Court of Appeal has ruled that the refusal to decorate a cake with the message 'Support Gay Marriage', on the grounds that it opposed the bakery owners' religious beliefs, did amount to direct discrimination, upholding the decision of the County Court.

The Facts

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'.

Having initially taken his order, the owners of the bakery, Mr and Mrs McArthur, subsequently decided that they could not fulfil the order because they were a 'Christian business' and told Mr Lee his order should not have been taken in the first place. The McArthurs accepted that they cancelled the order because they were 'opposed to a change in law regarding gay marriage which they regard as sinful'.

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

Mr Lee, whose case was backed by the Equality Commission for Northern Ireland, brought a case against the bakery for discrimination on the grounds of sexual orientation. The bakery argued that it wasn't discriminating against Mr Lee's sexuality but its refusal to fulfil the order had been based on the wording of the slogan.

Northern Ireland County Court (CC)

The judge found that the McArthurs were guilty of direct discrimination on the grounds of sexual orientation, contrary to Equality Act (Sexual Orientation) Regulations (Northern Ireland) 2006. The judge confirmed that as the bakery was purely a commercial venture, the McArthurs were not able to rely on the statutory exemption for organisations with religious belief and noted there was nothing in the bakery's Memorandum and Articles of Association in relation to religious beliefs or values.

The bakery appealed the decision.

Northern Ireland Court of Appeal (CoA)

The CoA upheld the CC's decision, finding that the reason why the order was cancelled was because the bakery 'would not provide a cake with a message supporting a right to marry for those of a particular sexual orientation'.

The CoA also held that the benefit from the slogan on the cake could only accrue to gay or bisexual people and that the McArthurs would not have objected to a cake carrying the message 'Support Heterosexual Marriage' or 'Support Marriage'. It was the use of the word 'gay' within the slogan which caused the order to be cancelled.

The judges went on to say that this was a case of discrimination by association with the gay and bisexual community and therefore amounted to direct discrimination.

Best Practice

It should be noted that this case was decided under the equalities laws in Northern Ireland, which differ from those in England and Wales.

However, the CoA's decision remains in line with the Supreme Court's decision of Bull and another v Hall and another, where bed and breakfast owners were found guilty of both direct and indirect discrimination when they refused to allow Mr Hall and Mr Preddy, civil partners, to share a double room because they were not married.

Whilst not employment cases themselves, both the cases referred to above provide guidance for employers in the difficult area of competing rights under the Equality Act. Employers may have to make decisions about how far employees are free to express their religious views if these conflict with the rights of others

For more information please contact Michael Halsey in our Employment Law team on 020 7665 0842.