Let Them Eat Cake? A Case of Bakery Discrimination
This case began in 2014 when Gareth Lee went to the Belfast-based baking company and requested that they bake him a cake adorned with the message ‘Support Gay Marriage’ along with the logo for Queerspace, and the puppets Bert and Ernie from Sesame Street. The owners, Daniel and Amy McArthur refused to follow through on this, citing that it was against their strongly held Christian beliefs. Daniel McArthur’s parents originally opened the bakery and they derived the name of the bakery from a verse in the Book of Genesis. Daniel and his wife continue to uphold this family tradition of belief. Mr Lee, by contrast, is a volunteer with Queerspace, an organisation that supports the campaign for same-sex marriage. Interestingly enough Mr Lee had purchased cakes from Ashers before, though he did not know of their strongly held faith and neither did they know of his sexual orientation. It was only when they refused him that relations deteriorated and Mr Lee launched a case for discrimination in the County Court.
This culminated with District Judge Isobelle Brownlie of the County Court holding that this amounted to direct discrimination both based on sexual orientation, under the Equality Act (Sexual Orientation) Regulations (NI) 2006, and the standards of political and religious beliefs outlined in the Fair Employment and Treatment (NI) Order 1998. The Ashers appealed this decision to the Northern Ireland Court of Appeals. The Court, under Chief Justice Sir Declan Morgan, also concluded that the Ashers’ actions amounted to direct discrimination. The court also cited the Equality Act (Sexual Orientation) Regulations (NI) 2006, stating that it would not be read down to fit with the Ashers’ religious beliefs. Interestingly, during proceedings, the Attorney General intervened and tried to challenge the validity of the 2006 Act and the 1998 Order. The Attorney General asserted that the Ashers were compelled to articulate views which were ‘hostile to their religious and political beliefs’ and that they were protected from such acts by the ECHR. Sir Declan Morgan dismissed these arguments, commenting that it was ironic the Attorney General was attempting to use statues originally intended to protect equality to subvert constitutional safeguards. The Ashers’ crusade had seemingly failed.
Undeterred, they appealed to the UK Supreme Court. The five UK justices all came to the conclusion that both the County Court and the Court of Appeal were incorrect in their ruling. Lady Hale’s judgment concerned itself with the issue of discrimination (the other judgment by Lord Mance looked at the jurisdictional issue). Lady Hale took the view that ‘This was a case of associative discrimination or it was nothing’, remarking that the core of the Ashers’ problem was not with Mr Lee’s sexuality but rather with the message, concluding that “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.”. Lady Hale did also state that this was not to diminish the need to protect homosexuals from discrimination nor to disparage them. She appended her judgment with a consideration of the recent case of the US case of Masterpiece Cakeshop Ltd v Colorado Civil Rights Commission, which similarly dealt with a baker refusing to bake a cake for a gay couple.
The Asher’s were reportedly delighted with the result with Arlene Foster even commending them for their perseverance. However, Mr Lee may be considering an appeal to the European Court of Human Rights. So while the Ashers can have their cake for the moment, they can’t eat it just yet.
By Daniel Forde – Law Editor