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Discriminatory refusal to make cake with pro-gay marriage slogan

7th August, 2017 by Simon deMaid

NEWS

The Northern Ireland Court of Appeal has held that a bakery discriminated against a customer on the grounds of sexual orientation when it refused to decorate a cake with a slogan supporting gay marriage.

IMPLICATIONS

Whilst not an employment law case, this is an interesting decision on the conflict between two protected characteristics, in this case, being sexual orientation and religious belief.

DETAILS

In the case of Lee v Ashers Baking Company Limited, Gareth Lee had tried to buy a cake depicting the Sesame Street characters Bert and Ernie below the motto ‘Support gay marriage’ for an event to mark International Day Against Homophobia in 2014.

His order was initially accepted by the bakery. However, Mr & Mrs McArthur, the owners of Ashers Bakery, cancelled Mr Lee’s order and refunded his money. The McArthurs’ are devout Christians who believe that gay marriage is contrary to God’s law and cancelled the order on the basis of their religious beliefs.

The Northern Ireland Court of Appeal upheld the county court's decision that Mr Lee had been directly discriminated against by association on the grounds of sexual orientation. It did not accept the McArthurs’ argument that a protected characteristic could not be established by a difference in treatment in respect of a message on a cake. However, the judge felt that there was a difference in treatment rooted in the sexual orientation of the gay community and pointed out that the McArthurs would not have refused to decorate a different cake which carried the slogan 'Support Heterosexual Marriage' or ‘Support Marriage’.

The McArthurs argued that their freedoms of both expression and religious belief were being infringed. However, the judge found that the relevant legislation was not incompatible with the relevant articles of the European Convention on Human Rights. No one could assume that by decorating a cake they were voicing their personal support for its slogan in the same way that decorating witches on a Halloween cake does not indicate support for witchcraft.

COMMENT

Simon deMaid comments: "This case highlights the paramount importance of providing goods and services on a basis that is free from discrimination even if this conflicts with the owner's religious beliefs".

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