The Supreme Court recently ruled in the so-called “gay cake” case in which a family bakers in Northern Ireland refused to make a cake with a slogan on it which supported gay marriage. The case generated intense media scrutiny as the Court was asked to adjudicate on a conflict between the religious belief of the business owners and the sexual orientation of the customer.
The customer brought a claim against the bakers shop for sexual orientation discrimination and/or discrimination on the grounds of religious belief or political opinion (which is a claim unique to Northern Ireland).
In England, Wales and Scotland, although there is no identical protection against discrimination on the grounds of political opinion, it is unlawful to discriminate on the grounds of religious or other philosophical or similar beliefs.
Equality laws in the UK apply to both service providers and employers so this latest decision could also have ramifications in the workplace. It is relatively rare to find a case involving discrimination by service providers which goes all the way to the Supreme Court so this is a very noteworthy decision, not least because it seems to go against the broad trend of these types of cases.
Mr and Mrs McArthur are Christians who hold the religious belief that the only form of marriage consistent with Biblical teaching and acceptable to God is that between a man and a woman. They are the owners of a bakery business which offered a ‘Build-a-cake’ service by which customers could request images or inscriptions to be iced onto a cake.
In May 2014 Mr Lee, a gay man, wished to take a cake to an event organised by campaigners for same sex marriage in Northern Ireland. He placed an order for a cake iced with a depiction of the cartoon characters ‘Bert and Ernie’ and the words ‘Support Gay Marriage’. Mrs McArthur initially took the order but later advised Mr Lee that she could not in conscience produce such a cake and gave him a refund.
At first instance, the Court held Mr Lee had suffered discrimination on the grounds of sexual orientation, religious belief and political opinion. The Mr and Mrs McArthur appealed to the Court of Appeal which dismissed the appeal and upheld the original ruling.
The Supreme Court decision
The Supreme Court overturned the Court of Appeal’s ruling that Mr Lee suffered sexual orientation discrimination. The McArthurs did not refuse to fulfil Mr Lee’s order because of his sexual orientation. Their objection was to the message on the cake, not any personal characteristics of the customer, or anyone with whom he was associated. The message was not indissociable from Mr Lee’s sexual orientation, as support for gay marriage was not a proxy for any particular sexual orientation. Thus, there was no discrimination on grounds of sexual orientation in this case.
The Supreme Court also ruled that Mr Lee had not suffered discrimination on the grounds of religious belief or political opinion. As the McArthur’s objection was not to Mr Lee, but to being required to promote the message on the cake, the situation was not comparable with people being refused jobs or services simply because of their religious faith. The Court considered that Mr and Mrs McArthur’s human right to freedom of thought, conscience and religion (article 9) included the right not to be obliged to manifest beliefs they did not hold and should not be interprered as requiring them to supply a cake iced with a message with which they profoundly disagreed.
Ben Power’s article examining the case and its possible implications was published by The Brief (the online law pages of the The Times newspaper) on 22 October 2018.
A copy of the full judgment and associated documents can be found on the Supreme Court website