The Ashers “Gay Cake” appeal- one of these things is not like the others

When our children were watching Sesame Street one of the regular clips featured the song “one of these things is not like the others“, training children to look carefully and make distinctions where things are different. In a case involving Bert and Ernie from Sesame Street, the Northern Ireland Court of Appeal has shown that it is not very good at making distinctions between things that are different.

The case is Lee v McArthur, McArthur & Ashers Baking Co Ltd [2016] NICA (24 October 2016). (Thanks to the always helpful Law and Religion UK blog for the link to the official report. There is an “official summary” available here which is a bit shorter.) In the decision the Court of Appeal equates the decision of Christian bakers not to supply a cake, the sole purpose of which was to bear a message which they disagreed with on religious grounds, with a decision of a business to discriminate against persons on the grounds of their sexual orientation. In my view they have confused things which are quite different to each other.

I have discussed the earlier stages of this litigation in a previous post, “Sesame Street and the Gay Cake“. In short, Mr Lee, a member of the Northern Ireland “Queerspace” organisation, ordered a cake from Ashers Bakery (run by Mr and Mrs McArthur). The cake was to be used in an event designed to support the introduction of same sex marriage into Northern Ireland (which despite a number of Parliamentary votes has still not recognised the institution). It was to bear a graphic design featuring “Bert and Ernie” with the caption “Support Gay Marriage”. Mr and Mrs McArthur are evangelical Christians who believe that homosexuality is contrary to God’s will for humanity. When they learned the message to be used, they declined to provide the cake, refunding the deposit that had been paid. Another baker was found to provide the cake for the event. (Note that the cake was not a “wedding cake”; it was not to be used in celebration of a particular relationship, it was produced to make a policy statement.)

Ashers and its owners were then sued by Mr Lee, with the support of the Equality Commission for Northern Ireland, for sexual orientation discrimination contrary to the Equality Act (Sexual Orientation) Regulations (NI) 2006. (There was another claim relating to “political” discrimination, but it was not really discussed in the appeal proceedings.)

The argument accepted by the Court of Appeal was that the refusal to provide the cake on the basis of the message it conveyed, was direct discrimination against Mr Lee, a gay man. The short and, one would have thought, compelling response is that the decision was made, not on the basis of any characteristic of Mr Lee, but on the basis of the message being conveyed by the cake. Indeed, it was accepted by the Court of Appeal at [22] that the trial judge had not based her decision on the issue as to whether the McArthurs knew that Mr Lee was, or was not, gay. The finding of sexual orientation discrimination was simply made on the basis that “the appellants cancelled the order as they opposed same sex marriage”.

How then did the Court find that a decision based on a lack of support for a message about changing the law, was unlawful discrimination against Mr Lee on the basis of his sexual orientation? How was there, to use the terms of the legislation, “less favourable treatment” on the basis of sexual orientation?

The decision of Morgan LCJ for the Court from para [54] relies heavily on the decision of the UK Supreme Court in Bull v Hall [2013] UKSC 73. There Christian boarding house owners were found to have committed sexual orientation discrimination when they denied a double bed to a same sex couple, even though they also denied such accommodation to unmarried heterosexual couples. (I discussed this case, and others dealing with issues raised by freedom of religion and discrimination laws, in a conference paper from 2015 linked here.)

At paras [55]-[56] Morgan LCJ quotes from Lady Hale’s judgment in Bull, where her Ladyship referred at [19] to:

    1. the words of Advocate General Sharpston … in Bressol v Gouvernement de la Commaunité Française (Case C-73/08) [2010] 3 CMLR 559, para 56: “I take there to be direct discrimination when the category of those receiving a certain advantage and the category of those suffering a correlative disadvantage coincide exactly with the respective categories of persons distinguished only by applying a prohibited classification.” In this she was building on the opinion of Advocate General Jacobs in Schnorbus v Land Hessen (Case C-79/99) [2000] ECR I-10997, para 33 “The discrimination is direct where the difference in treatment is based on a criterion which is either explicitly that of sex or necessarily linked to a characteristic indissociable from sex. It is indirect where some other criterion is applied but a substantially higher proportion of one sex than of the other is in fact affected.” (emphasis added)

So the suggestion there is that there will be discrimination on a prohibited ground when there is a decision made relating to some characteristic which is “indissociable” from the prohibited ground. (This slightly odd word means, according to the OED,  “Incapable of being dissociated.” In other words, unable to be “separated” or distinguished.)

In this case, then, it needs to be shown that “support for gay marriage” is a characteristic which cannot be separated from, or dissociated from, the “sexual orientation” of being homosexual. This is what Morgan LCJ says, in effect. Perhaps para [58] is the core of the decision:

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 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… There was an exact correspondence between those of the particular sexual orientation and those in respect of whom the message supported the right to marry. 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.

With respect, the argument seems flawed. The judgment makes a move in para [58] to the question, not discussed previously, as to who will “benefit” from the message. But that is not the question raised by the legislation. The question is whether a detriment  has been imposed based on the sexual orientation of the person. To find that a decision based on “support for gay marriage” was discriminatory on that basis, it would need to be shown that the category of “persons of homosexual orientation” was precisely the same as “persons supporting gay marriage”.

It needs hardly be said, but this is wrong as a simple matter of fact. Many heterosexual people support gay marriage. Some homosexual people do not support gay marriage. The McArthurs testified, and the trial judge accepted, that they would have supplied a cake to Mr Lee without the message in question, and they would also have refused to supply a cake with the same message to a heterosexual customer -see para [11]. It seems very hard to justify the appeal decision.

The arguments of the appellants, which are set out at paras [23]-[39] of Morgan LCJ’s judgment, are compelling. Discrimination which is prohibited is a difference of treatment of persons, distinct from a difference of treatment in relation to an inanimate object such as a cake- [26]. Articles 9 and 10 of the European Convention on Human  Rights provide protection for people on the grounds of freedom of religion and freedom of speech, and should have led to these provisions being read in a way consistent with recognition of these rights- see [31].

The appellants also referred to cases I have mentioned in previous blog posts- such as the “Kentucky T-shirt case”, Hands on Originals, Inc v Lexington-Fayette Urban County Human Rights Commission (Fayette Circuit Court, Civil Branch, 3rd Div, Ky; Civil Action No 14-CI-04474; James D Ishmael Jr, J; 27 April 2015), where a T-shirt printer was found to be entitled to decline to support a message of “Gay Pride” (see “Cakes, t-shirts and religious freedom- an update“).

The decision of Morgan LCJ also dealt with, but with respect does not seem to have properly understood, the Ontario Superior Court of Justice decision in  Brockie v Ontario Human Rights Commission [2002] 22 DLR (4th) 174. In that case, as noted at here at para [42], the printer concerned was required to print general stationary for a gay and lesbian support organisation. However, the final outcome of the case was that the court ruled, as noted here at paras [68]-[69], that printer’s religious freedom rights meant that he could not be ordered to produce any literature that “conveyed a message proselytising or promoting the gay and lesbian lifestyle”. Despite Morgan LCJ’s attempt to distinguish the decision, at para [70], it seems to me that it was directly on point, and provided further support for the view that Ashers should not have been required to produce a cake opposed to their own conscientious religious beliefs.

(Interestingly, Brockie was cited with approval by Redlich J in dissent in the Australian decision in Christian Youth Camps Limited & Ors v Cobaw Community Health Services Limited & Ors[2014] VSCA 75 (16 April 2014) at, e.g., para [544].For comment on this case, which raises many of the same issues as being discussed here, see my earlier paper.)

It is worth saying again, though the point has already been made, that the decision not to supply the cake here was not made on the basis of the sexual orientation of the customer, but on the basis of a message conveyed by the cake which was contrary to the fundamental religious beliefs of the bakers.

At one point the suggestion is made that provision of a cake by a baker indicating support for a particular football team, or portraying witches on a Halloween cake, does not indicate active support for either the team or for witchcraft- see [67]. But the situations are surely different. Producing a football cake at least suggests that the baker is “neutral” on the topic of football. Producing a Halloween cake is not seen by anyone as asserting an opinion about the supernatural. But other topics are more controversial, and even if the baker producing a cake supporting a political party were not seen as themselves personally supporting the party, they would in fact have acted to provide such support.

The point really comes down to this- should the State through law make the decision of conscience as to whether the act of producing a cake in these circumstances amounts to support provided for a cause which the baker feels they cannot provide? Or should the law not allow bakers to make that decision for themselves, where it is a question of support for a message, not a direct refusal of services on the grounds of the character of the person themselves?

Peter Tatchell, a well-known gay activist who supports same sex marriage, puts it well in attacking this appeal decision (see “Ashers Bakery’s defeat is no win for the LGBT community – it sets a dangerous and authoritarian precedentThe Independent 24 Oct 2016):

It is an infringement of freedom to require businesses to aid the promotion of ideas to which they conscientiously object. Discrimination against people should be always unlawful but not discrimination against ideas and opinions.

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