Cake and Controversy

Supreme court rules that a bakery’s refusal to make a “support gay marriage” cake was not discriminatory

In Lee v Ashers Baking Company, a recent case that has attracted widespread press attention, the Supreme Court ruled that a Belfast bakery’s refusal to supply a cake iced with the slogan “support gay marriage” did not constitute unlawful discrimination on the grounds of sexual orientation, religious belief or political opinion (which is a protected characteristic in Northern Ireland, but not explicitly in England).

In relation to sexual orientation, the court found that the bakery objected only to the “support gay marriage” slogan, not to any of the customer’s personal characteristics (including his sexual orientation). As stated by Lady Hale, “the objection was to the message, not the messenger”.

This finding was supported by evidence that the bakery both served and employed gay people, indicating that the specific objection to promoting gay marriage stemmed not from discriminatory views, but from a sincere religious belief that gay marriage is inconsistent with Biblical teaching and is therefore unacceptable to God.

Lady Hale also considered it was doubtful whether there had been less favourable treatment on the grounds of religious beliefs or political opinions. The court distinguished between a supplier refusing to supply its products to a customer on the basis of that customer’s beliefs or opinions and a supplier refusing to supply a product promoting a message with which it profoundly disagreed.

The court believed that the bakery’s objection did not arise because of the customer’s political stance on gay marriage or his religious beliefs, as the bakery was quite prepared to serve the customer in other ways. Anyone else would have been treated in the same way, regardless of his or her beliefs or opinions. Instead, the court felt that the bakery’s objection was only to the requirement to promote the “support gay marriage” message.

In reaching this decision, the court also considered the Convention rights to freedom of thought, conscience and religion (article 9) and freedom of expression (article 10). Lady Hale acknowledged that obliging the bakery owners to manifest a belief that they did not hold would have constituted a limitation on their article 9 rights, whilst article 10 also protected their right not to express certain opinions.

Lady Hale’s judgement concluded with the statement that in her view, the relevant legislation 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.

It is worth briefly mentioning the case of Bull v Hall, in which the Supreme Court confirmed that a hotel owner’s refusal to accommodate two gay men in a double room constituted discrimination under the Equality Act 2010. This case can perhaps be distinguished on the basis that the hotel owner objected to the prospective customers’ personal characteristics (i.e. their sexuality); unlike the bakery in Lee v Ashers Baking Company, the hotel was willing to supply a service to married heterosexual couples, but unwilling to supply that same service to two gay men that had entered into a civil partnership.