The long-awaited decision in the so-called ‘gay cake’ case has been issued today, with the Northern Ireland Court of Appeal confirming the County Court’s finding that Asher Baking Company directly discriminated against Gareth Lee on grounds of sexual orientation. Equality and discrimination law expert Dr Erica Howard gives her assessment of the verdict.
In May 2014, Gareth Lee ordered a cake with a colour picture of Bert and Ernie, two characters from the TV programme Sesame Street, which has become the logo for QueerSpace, with the slogan ‘Support Gay Marriage’. Two days later, the bakery, Ashers, told Mr Lee over the phone that they could not fulfil the order because the bakery was a “Christian business”. The bakery is a limited company with a number of shops and about 80 employees. After Asher’s refused to make the cake, Mr Lee got the cake made elsewhere in time for the event it was meant for. Mr Lee also launched a complaint of discrimination against the bakery company and its owners. He was assisted in his claim by the Equality Commission Northern Ireland.
In the County Court, the bakery argued that they were “entitled to refuse to supply services which could conflict with freedom of conscience or religious belief“. Judge Brownlie accepted that the owners of the bakery company had rejected the cake because of their genuine and sincerely held belief that same-sex marriage should be opposed as it is contrary to God’s law. But, she rejected the argument that this belief entitled them to refuse supplying the cake requested. She found the bakery guilty of direct discrimination on the grounds of sexual orientation.
In today’s judgment, the Belfast Court of Appeal agreed with the judge in the County Court that the bakery company had directly discriminated against Mr Lee on the ground of sexual orientation. It rejected the argument that the bakery and its owners would have been endorsing gay marriage equality by baking the cake. It argued that Mr Lee received less favourable treatment than other people because of sexual orientation. The judges considered that:
“The benefit from the message or slogan on the cake could only accrue to gay or bisexual people. The appellants would not have objected to a cake carrying the message ‘Support Heterosexual Marriage’ or indeed ‘Support Marriage’. We accept that it was the use of the word ‘Gay’ in the context of the message which prevented the order from being fulfilled. The reason that the order was cancelled was that the appellants would not provide a cake with a message supporting a right to marry for those of a particular sexual orientation. This was a case of association with the gay and bisexual community and the protected personal characteristic was the sexual orientation of that community. Accordingly this was direct discrimination.”
The Court of Appeal also considered that “if businesses were free to choose what services to provide to the gay community on the basis of religious belief, the potential for arbitrary abuse would be substantial”. And, it suggested that “the supplier may provide a particular service to all or none but not to a selection of customers based on prohibited grounds”. So, the bakery “might elect not to provide a service that involves any religious or political message, but what they might not do is provide a service that only reflects their own political or religious message in relation to sexual orientation”.
Both the County Court and the Court of Appeal thus found that there had been direct discrimination contrary to the law. This is, in my view, based on a correct interpretation of the prohibition of direct discrimination laid down in Northern Ireland’s anti-discrimination laws and in the EU Directive against discrimination on the grounds of sexual orientation. Mr Lee was directly discriminated against and was treated less favourably than someone who wanted a message celebrating (heterosexual) marriage because of sexual orientation (Note that, in Northern Ireland, same-sex couples cannot get married).
For me, the outcome of the case is welcome, but what is surprising in the case is the way the Northern Ireland Equality Commission is criticised. The following passage comes from the summary of the judgment:
“In the course of the hearing concern was expressed about the role of the Equality Commission in the pursuit of this case. It was made clear to us that the Commission recognised its role in ensuring that all elements of Northern Ireland society participate in the commercial space. To that end we have been assured that the Commission is available to give advice and assistance to those such as the appellants who may find themselves in difficulties as a result of their deeply held religious beliefs. The only correspondence to the appellants that we have seen, however, did not include any offer of such assistance and may have created the impression that the Commission was not interested in assisting the faith community where issues of this sort arose. It should not have been beyond the capacity of the Commission to provide or arrange for the provision of advice to the appellants at an earlier stage and we would hope that such a course would be followed if a situation such as this were to arise in future.”
It is not clear what assistance they should have given in this case.
It is not clear what assistance the Equality Commission should have provided to the bakery and its owners. It seems to me that the Commission was of the view that the conduct by the bakery constituted direct discrimination against Mr Lee contrary to the Northern Ireland anti-discrimination regulations (a view that has now been confirmed by both the Northern Ireland County Court and the Court of Appeal). They could and should have informed the bakery and its owners of what, in their view, was the correct interpretation of the law (and maybe they did so, this is not clear from the case), but should they have provided further assistance when the bakery and its owners wanted to pursue an interpretation which was, in the Commission’s view, not a correct interpretation of the law? It is, of course, unfortunate if the impression was created that the Equality Commission was not interested in assisting the faith community in relation to these sorts of issues, but it is not clear what assistance they should have given in this case.