Update- Direct Discrimination

January 25, 2019, By

In the case of Lee v Ashers Baking Company Ltd and Others, the Supreme Court has held that it is not directly discriminatory for a Christian baker to refuse to bake a cake containing a message supportive of gay marriage.

Ashers Baking is a family-owned business and two of its directors are Christians who oppose same sex marriage. In May 2014, Mr Lee who is a gay man, asked the bakery to decorate a cake with a photograph of the Sesame Street characters, Bert and Ernie along with the wording ‘Support Gay Marriage’. Although the order was initially accepted by an employee, the bakery later declined to fulfil the order due to their religious beliefs.

Mr Lee brought a discrimination claim through the Northern Irish courts and succeeded at first instance in the county court and before the Northern Irish Court of Appeal.
However the Supreme Court overruled those decisions and in doing so considered direct discrimination on grounds of both sexual orientation and political belief. They concluded that the bakers’ refusal was not because of Mr Lee’s actual or perceived sexual orientation. The objection was to the message on the cake, not to the personal characteristics of Mr Lee himself. It was thus not direct discrimination in the ordinary sense.

The Supreme Court was also not satisfied that this was associative direct discrimination, i.e. because Mr Lee was likely to associate with the gay community. For associative discrimination to succeed there needed to be an association with particular persons and discrimination due to that association. There was no evidence that the bakery had discriminated on that particular ground, given that it had both employed and served gay people. It was not sufficient to say that the reason for the less favourable treatment, namely the message requested on the cake had something to do with sexual orientation of some people, in order to make out the claim.

When considering whether there was discrimination on the grounds of political belief, the Court relied heavily on the rights relating to religion and expression under Articles 9 and 10 of the European Convention on Human Rights. Those rights include an entitlement not to be forced to express a political opinion in which you do not believe. Although the bakery’s directors could not refuse to provide their products to Mr Lee because he was a gay man or because he supported gay marriage, that was different to obliging them to supply a cake iced with a message with which they profoundly disagreed. The Court therefore held that there was no discrimination on the grounds of belief or political opinion.

Although the instant case was primarily concerned with discrimination in the provision of goods and services, this case has also impacted on employment case law. The decisions at first instance and in the Northern Ireland Court of Appeal appeared to stretch boundaries of direct discrimination by treating support for same sex marriage as synonymous with the protected characteristic of sexual orientation although the Supreme Court appears to have reverted to a more orthodox interpretation.
Protection from discrimination on the grounds of political opinion is not expressly included in the Equality Act 2010 therefore this element of the case has less direct relevance outside Northern Ireland although some political opinions could fall within the protected characteristic of ‘religion or belief’.