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‘Gay cake’ appeal decided

In the recent case of Lee v McArthur & others, the Court of Appeal in Northern Ireland has upheld the previous County Court in decision that a bakery’s refusal to bake a cake for a homosexual customer with the caption “Support Gay Marriage” written on it amounted to direct discrimination on grounds of sexual orientation, contrary to the provisions of the Equality Act (Sexual Orientation) Regulations (Northern Ireland) 2006.

Background

In this case the Claimant, Mr Lee, who was associated with an organization called “QueerSpace”, a volunteer-led organization for the LGBT community in Northern Ireland, had been planning to attend a private event to mark the end of Northern Ireland anti-homophobia week in May 2014. In preparation for the event Mr Lee had ordered a cake from Ashers Baking Company Ltd with the caption “Support Gay Marriage” on it. Having placed his order, Mr Lee subsequently received a call from the Respondent bakery who explained that the order could not be fulfilled as they were a Christian business and, in hindsight, should not have taken the order. The bakery apologised and arranged for a refund. Mr Lee expressed his disbelief to the bakery and brought a claim for discrimination on grounds of sexual orientation. The claim was issued against the bakery and its two directors Mr and Mrs McArthur (who are Christians). When the Respondents gave evidence they explained that they opposed the introduction of same-sex marriage and noted that they had real concerns that the cake design would have been identified as an Ashers’ cake as their logo is on their boxes. The bakery further argued that under the Equality Act (Sexual Orientation) Regulations (Northern Ireland) 2006, an individual is held to discriminate against another’s sexual orientation if they treat that person less favourably than another and under the circumstances they had not treated Mr Lee unfavourably as they would have refused a similar order from a heterosexual customer. District Judge Brownlie had held that the bakery had directly discriminated against Mr Lee on the grounds of his sexual orientation. The judge further concluded that the Respondent had identified the wrong comparator and that the correct comparator in this case should be that of a heterosexual customer placing an order with the caption “Support Heterosexual Marriage”. The Respondents had also argued that they were exempt from the 2006 Regulations for being a Christian organisation. This argument was also rejected as it was held that the bakery was a profit-based business, notwithstanding the directors’ religious beliefs.

Decision made by Court of Appeal

The matter was then referred to the Court of Appeal in Northern Ireland who rejected the appeal and agreed that the bakery directly discriminated against one of its customers on the grounds of sexual orientation by refusing to make the cake.

The Court rejected the argument presented by Mr and Mrs McArthur that that their rights under Article 9 (freedom of thought, conscience and religion) and Article 10 (freedom of expression) of the European Convention on Human Rights had to be taken into account and that the equality legislation had to be read down to accommodate those rights.

The Court found 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. It was open to Mr and Mrs McArthur to amend Ashers Baking Company ‘s offering to manifest their beliefs while ensuring that they continued to provide cakes that did not give rise to potential conflicts.

What Next?

Although the case was decided under the Northern Ireland Regulations, the case illustrates the issues that a business in England, Scotland and Wales might face under the Equality Act 2010.

The case also highlights the potential tension between the protected rights and anti-discrimination provisions under the Equality Act 2010 and the right to manifest religious beliefs and freedom of expression under the European Convention on Human Rights.

The matter may also not be concluded yet as the legal representatives for the McArthur family are considering making an application for leave to appeal to the Supreme Court in London.