Lisa Taggart is Senior Legal Officer with Legal Division of the Equality Commission for Northern Ireland.
If ever a case has focused attention on rights and responsibilities under anti discrimination legislation both nationally and internationally it’s this case: Academics, journalists, social media; politicians; churches; lobby groups; lawyers; the Attorney General for N I, the judiciary, including Northern Ireland’s most senior judges have all had their say.
So why has a case about the simple act of purchasing an iced cake ignited such interest and debate?
At first glance the facts of the case may seem straightforward, even trivial. However, the key to the case’s interest and importance lie precisely within its facts and how, within the context of the commercial arena, these facts interplay with both discrimination and human rights legislation.
The facts:
Mr Lee is a gay man who supports the proposals to legislate in Northern Ireland to permit same sex marriage. He is associated with an organisation called Queerspace. He planned to attend a private event to mark the end of NI Anti Homophobia Week. He decided to take a cake to the event. He was an Asher’s Bakery customer and noted its advertised service to ice cakes to the design of the customer. He ordered a cake with the words “Support Gay Marriage” accompanied by Sesame street character pictures of Bert & Ernie and the Queerspace logo. While the order was initially taken and accepted by one of the company’s Directors, Mr Lee was subsequently informed by her that his order could not be honoured as Ashers was a “Christian bakery”. Mr Lee received a refund and ordered his cake elsewhere.
The company had been set up solely for profit and commercial purposes. Although the bakery allowed its own logo to appear on iced cakes from time to time, it was not requested by Mr Lee to be used on this occasion.
The Claim:
The Equality Commission for NI in accordance with its statutory power to support individuals in line with its strategic priorities, assisted Mr Lee in discrimination proceedings against both the bakery (Ashers) and its Directors (the McArthurs) . Mr Lee claimed discrimination on grounds of sexual orientation under the provisions of the Equality Act (sexual orientation) Regulations (NI) 2006 and discrimination on grounds of religious belief and political opinion under the provisions of the Fair Employment and Treatment Order 1998.
The findings:
The district judge at first instance held that both Ashers and the McArthurs had directly discriminated against Mr Lee on all of the grounds claimed. She determined that support for gay marriage was a political issue in Northern Ireland and was indissociable from sexual orientation. While accepting that the defendants hadgenuine religious beliefs, neverthelessthey were conducting a business for profitwhich did not fall within the religious exemption contained in the legislation. Furthermore she did not accept that the Bakery was being asked to promote or endorse Mr Lee’s iced message contrary to their human rights.
The case was appealed by Ashers and the McArthurs (The Appellants) to the Court of Appeal in Northern Ireland. The Appellants appealed all of the district judge’s findings. They argued that they had religious objection not to the customer, Mr Lee, but to the message on the cake . In being required to deliver the service they argued that their right to refuse to promote something that contravened their religious beliefs was protected under Articles 9 and 10 of the European Convention on Human Rights dealing with freedom of religion and freedom of expression respectively. Essentially they argued that this was a ‘forced speech’ case.
The Attorney General for Northern Ireland was also granted permission to take part in the appeal proceedings arguing that the anti discrimination provisions engaged in the case where unconstitutional in so far as they forced the Appellants to “articulate or express or say a political message which is at variance with their political views and in particular their religious views”.
The Appeal Court rejected these submissions, holding that the case was one of associative discrimination on the grounds of sexual orientation (and using the same reasoning) on grounds of religious belief and political opinion. Giving judgment in the case Morgan LCJ said that “ It was the word “gay” which prevented the order from being fulfilled” The court held that the reason why the order was cancelled was because the Appellants would not provide a cake with a message supporting the right to marry for those of a particular sexual orientation. The Court concluded: “This was a case of association with the gay and bisexual community and the protected personal characteristic was the sexual orientation of that community”. On that basis the Court found that there was direct discrimination.
The Appeal Court also rejected the constitutional and human rights challenges. The Court did not accept that baking the cake would have involved forcing the Appellants to express or support gay marriage any more than a baker icing a cake with witches or a football team would indicate support for Halloween or a particular football club. In terms of the discrimination legislation the court found that it offered protection for all on an equal basis. The district judge’s findings of direct associative discrimination were upheld and the appeal was dismissed.
The principles behind the facts:
This case raised issues of public debate and importance but it did not expand or change the law. It clarified and confirmed the position that discrimination legislation in Northern Ireland includes discrimination by association and is not confined to the protected characteristic of the customer. It also confirmed the legal position that businesses operating in the commercial sphere for profit cannot refuse services to customers on any of the grounds covered by anti discrimination law. Furthermore, there is no requirement that businesses have to agree publically or privately with the views of their customers. Service providers have a choice in terms of the services which can be offered and must be mindful in a pluralist society not to curtail the rights of others.
The Appellants and the Attorney General sought leave from the Court of Appeal to take these matters to the Supreme Court. Both applications were declined.
Now if the Appellants wish to pursue the case further they are obliged to petition the Supreme Court directly and face significant restrictions in the parameters of such a challenge.
Regarding whether there will be further judicial scrutiny- we shall see. In the meantime, it is certainly the case that the Northern Ireland courts have been consistently clear.
Click here for the judgement in Gareth Lee v Ashers Baking Co Ltd and others