No sexual orientation discrimination in declining to make a “gay cake”

The UK Supreme Court has now ruled that the Ashers Bakery in Northern Ireland was not guilty of sexual orientation discrimination by politely declining to bake a cake decorated with a message in support of same sex marriage- see Lee v Ashers Baking Company Ltd [2018] UKSC 49 (10 Oct 2018). This is an important decision illustrating the clear difference between a decision based on someone’s personal characteristics, and a refusal to support a specific message.

Background

This litigation is very well known to those following law and religion issues. I have commented on previous stages of the case here and here. To adopt a statement of facts from one of my previous comments:

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. 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 also another claim relating to “political” discrimination.)

Ashers had been found guilty of both sexual orientation and political discrimination. Their appeal to the Northern Ireland Court of Appeal was turned down. They had to jump over a number of administrative hurdles to get their case heard by the Supreme Court- those who are interested in these constitutional issues can read the decision to find out more. But suffice to say for present purposes that there were in effect three live questions which the Supreme Court had to resolve:

  1. Had the Ashers Bakery denied Mr Lee a cake on account of his sexual orientation?
  2. Was their refusal based on Mr Lee’s “political opinion”? (This is a separate prohibited ground of discrimination in Northern Ireland.)
  3. If either of the above was true, did the laws which penalised the Ashers breach their rights to freedom of religion and freedom of speech under the European Convention on Human Rights? (In which case the ECHR would over-ride the local laws.)

The decision on these issues was given by the President of the Court, Lady Hale. Her Ladyship has been a strong supporter of protections for gay people in the past, which makes her lucid explanation of why there was no sexual orientation discrimination in this case all the more compelling.

No sexual orientation discrimination

Lady Hale clearly and cogently comes to the relevant point: the bakers did not refuse to supply the decorated cake to Mr Lee because he was gay; they refused because they did not agree with the message the cake was to convey.

[22] The District Judge did not find that the bakery refused to fulfil the order because of Mr Lee’s actual or perceived sexual orientation. She found that they “cancelled this order because they oppose same sex marriage for the reason that they regard it as sinful and contrary to their genuinely held religious beliefs” (para 43). As the Court of Appeal pointed out, she did not take issue with the submission that the bakery would have supplied Mr Lee with a cake without the message “support gay marriage” and that they would also have refused to supply a cake with the message requested to a hetero-sexual customer (para 11). The objection was to the message, not the messenger.

How on earth, then, did the lower courts find that this was unlawful sexual orientation discrimination? The District Judge did so in part because she concluded that support for same sex marriage was “indissociable” from homosexual orientation, and hence a decision based on one, amounted to a decision based on the other. (Ironically, it has to be said, in coming to this view the Judge cited some of Lady Hale’s decisions very heavily).

But Lady Hale here points out that this was wrong.

[25] This is, however, to misunderstand the role that “indissociability” plays in direct discrimination. It comes into play when the express or overt criterion used as the reason for less favourable treatment is not the protected characteristic itself but some proxy for it… [T]here is no such identity between the criterion and sexual orientation of the customer. People of all sexual orientations, gay, straight or bi-sexual, can and do support gay marriage. Support for gay marriage is not a proxy for any particular sexual orientation.

Exactly! Her Ladyship also corrected another error perpetrated by the Court of Appeal, to claim that support for same-sex marriage was a “proxy” for sexual orientation because only gay people could benefit from the change:

[33] Nor would I agree with the Court of Appeal that “the benefit from the message or slogan on the cake could only accrue to gay or bisexual people” (para 58). It could also accrue to the benefit of the children, the parents, the families and friends of gay people who wished to show their commitment to one another in marriage, as well as to the wider community who recognise the social benefits which such commitment can bring.

In short, there was no such close “association” between the reason for the refusal and the orientation of Mr Lee to require a finding that refusing to support his message meant discrimination against him as a person.

Her Ladyship concluded this part of the judgement with some other cogent points, which I would echo:

[34] In a nutshell, the objection was to the message and not to any particular person or persons…

[35] In reaching the conclusion that there was no discrimination on grounds of sexual orientation in this case, I do not seek to minimise or disparage the very real problem of discrimination against gay people…It is deeply humiliating, and an affront to human dignity, to deny someone a service because of that person’s race, gender, disability, sexual orientation or any of the other protected personal characteristics. But that is not what happened in this case.

 Political opinion discrimination?

Briefly, since the next point was really only relevant to the fairly rare situation of “political opinion” discrimination, her Ladyship was not quite so sure on this point. Arguably, she said, it was possible to hold that the same logic as above would excuse the bakers on this ground, as it could be said they were simply expressing disagreement with the opinion rather than treating the customer badly because of it. But this was a case where the ground of discrimination and the opinion were indeed closely associated. So assuming a possible case for political discrimination had been made out, consideration needed to be given to the European Convention rights of the bakers.

(It is worth noting that her Ladyship did scotch one other error of the lower courts, which at one point suggested that a discrimination claim could be made where the motive of the alleged discriminator was religious or political. But, sensibly, she ruled that the structure of the law did not allow this view- what was relevant was the characteristic of someone else other than the alleged perpetrator of discrimination; see para [45].)

Human Rights considerations

The European Convention on Human Rights is binding on the UK (and, as a matter of interest, will still be so in the future whatever options are adopted for “Brexit”, unless the UK Government separately withdraws.) Rights under the Convention can be asserted by private citizens in different ways. Here, if the relevant Northern Ireland laws possibly contravened rights under the ECHR, those laws would have to be interpreted so far as possible to be compliant with the Convention.

Since there was no finding of sexual orientation discrimination (for reasons noted above), the live issue was whether the operation of the law on political opinion discrimination was in conflict with relevant rights. Art 9 of the ECHR is a strong religious freedom right, and art 10 a right to free speech.

In light of current debates in Australia about religious freedom, it is worth noting the importance of this right under the ECHR, in a quote provided by Lady Hale at [49] from a previous decision of the European Court of Human Rights, Kokkinakis v Greece (1993) 17 EHRR 397, para 31:

“As enshrined in article 9, freedom of thought, conscience and religion is one of the foundations of a ‘democratic society’ within the meaning of the Convention. It is, in its religious dimension, one of the most vital elements that go to make up the identity of believers and their conception of life, but it is also a precious asset for atheists, agnostics, sceptics and the unconcerned. The pluralism indissociable from a democratic society, which has been dearly won over the centuries, depends on it.”

Her Ladyship noted at [50] that a number of important decisions hold that “obliging a person to manifest a belief which he does not hold has been held to be a limitation on his article 9(1) rights.” That is precisely what upholding the political opinion discrimination claim against the bakers would do in this case. It was not right, as the Court of Appeal had said, simply to note that no-one may think the McArthurs (owners of the bakery) personally supported the cause.

[54]… These are, in fact, two separate matters: being required to promote a campaign and being associated with it. As to the first, the bakery was required, on pain of liability in damages, to supply a product which actively promoted the cause, a cause in which many believe, but a cause in which the owners most definitely and sincerely did not. As to the second, there is no requirement that the person who is compelled to speak can only complain if he is thought by others to support the message. Mrs McArthur may have been worried that others would see the Ashers logo on the cake box and think that they supported the campaign. But that is by the way: what matters is that by being required to produce the cake they were being required to express a message with which they deeply disagreed. (emphasis added)

This, then, was a breach of their art 9 rights to religious freedom (and also free speech rights under art 10).

[55] The bakery could not refuse to provide a cake – or any other of their products – to Mr Lee because he was a gay man or because he supported gay marriage. But that important fact does not amount to a justification for something completely different – obliging them to supply a cake iced with a message with which they profoundly disagreed. (emphasis added)

I thoroughly support the view that obliging someone to provide a message is “something completely different” from allowing them to refuse a general service to someone on account of their sexuality. (I made the same point in my previous post on this case, “The Ashers “Gay Cake” appeal- one of these things is not like the others“!)

Hence the legislation forbidding “political opinion” discrimination had to be “read down” so as not to operate in a case like this- see [56]: “[the law] should not be read or given effect in such a way as to compel providers of goods, facilities and services to express a message with which they disagree, unless justification is shown for doing so.”

Conclusion

There are some other very interesting comments made in the course of this decision. For example, Lady Hale notes at [57] that the principles of religious freedom she has referred to are applicable, in this case at least, to the company Ashers Baking Co Ltd, as well as to the individuals Mr and Mrs McArthur. Not much discussion is given to this conclusion; the main reason for it is that to deny a remedy to the company, where Mr and Mrs McArthur operate the business through the company, would be to negate a remedy they should have. In that sense the result is similar to the finding in the US Supreme Court decision in Burwell v. Hobby Lobby Stores, Inc., 134 S. Ct. 2751, 189 L. Ed. 2d 675 (2014), where a majority of the court there found that a “closely held corporation” (like Ashers, where in effect the company was simply a vehicle for a small business operated by the directors and owners) should be able to make a religious freedom claim under US law.

And speaking of US decisions, her Ladyship adds a postscript to comment on the connections between this decision and the recent “cake” decision of the US Supreme Court in Masterpiece Cakeshop Ltd v Colorado Civil Rights Commission (unreported, 4 June 2018). (See my previous post on this decision, where I commented on the differences between the Ashers claim and that case.) 

Her Ladyship, after noting the varying reasons offered by the various Justices, sums up the differences between the two cases as follows:

[62] The important message from the Masterpiece Bakery case is that there is a clear distinction between refusing to produce a cake conveying a particular message, for any customer who wants such a cake, and refusing to produce a cake for the particular customer who wants it because of that customer’s characteristics. One can debate which side of the line particular factual scenarios fall. But in our case there can be no doubt. The bakery would have refused to supply this particular cake to anyone, whatever their personal characteristics. So there was no discrimination on grounds of sexual orientation. (emphasis added)

This is a very helpful passage. It leaves room for “debate” in a real sense over the question whether the demand that a baker produce an artistic statement celebrating a same sex relationship, is a demand to produce a message or not. My inclination is to say that it is, and that the underlying logic which supports the bakers here would also be applicable in at least some cases where a religious baker was asked to produce a cake sending the “message” that same sex relationships are to be celebrated.

At any rate, it is encouraging to see clear reasoning on the issues from the UK Supreme Court.