public law,

No Cake for You: The Legal Battle for Equal Treatment in Lee v McArthur & Ors

By Austin Chan Sep 08, 2018

Lee v McArthur & Ors [2016] NICA 39, commonly known as the ‘Gay Wedding Cake’ case, is currently awaiting judgment from the UK Supreme Court (‘UKSC’). Lee promises to provide vital guidance on how conflicts between the LGBT and faith community should be resolved commercially. This article analyses the judgment handed down by the Northern Ireland Court of Appeal (‘NICA’) and concludes that, despite the controversy, an outcome against the bakery is legally unsurprising and desirable within a commercial context.

Mr Lee, a homosexual man from Northern Ireland, ordered a cake from Ashers Bakery with the printed words “Support Gay Marriage”. However, the bakery’s directors – being devoted Christians – opposed the introduction of same-sex marriage because it was in their view contrary to God’s law. Consequently, Mr and Mrs McArthur (the bakery directors) telephoned Mr Lee notifying him that the order could not be fulfilled. Unhappy with this outcome, Mr Lee brought two discrimination claims against Ashers bakery and its directors. First, on the ground of sexual orientation in breach of the Equality Act (Sexual Orientation) Regulations (NI) 2006 (‘the 2006 Regulations’). Second, on the ground of religious belief or political opinion contrary to the Fair Employment and Treatment (NI) Order 1998 (‘the 1998 Order’). Challenging these claims, the bakery argued that both statutory provisions breached their rights under Articles 9, 10 and 14 of the European Convention on Human Rights (‘ECHR’). In the lower courts, the County Court and NICA held that Mr Lee was directly discriminated against on the basis of his sexual orientation and political opinion. In addition, both courts agreed that the provisions were compatible with Articles 9, 10 and 14. After the NICA decision, the parties now look towards the highest appellate court for Northern Ireland, the UKSC, for final judgment.

The arguments presented in Lee are similar to those found in Bull and another v Hall and another [2013] UKSC 73. Bull concerns a devout hotelier that only provided double bedroom accommodation to married couples. The hotelier denied the guest, who was in a civil partnership, a double bedroom.Fenton-Glynn observes that the UKSC was fractured in deciding the legal ground upon which the outcome was based1. For the majority, there was direct discrimination against the guest. Lady Hale (with whom Lord Toulson and Lord Kerr agreed) stated that there was great difficulty “in seeing how discriminating between a married and a civilly partnered person can be anything other than direct discrimination on grounds of sexual orientation”2. In contrast, Lord Neuberger and Lord Hughes argued that the discrimination could only be indirect because the hoteliers would have denied a room to any non-married, heterosexual or homosexual couple3. This distinction between direct and indirect discrimination is of critical importance as the 2006 Regulations provides that indirect discrimination may be justified, whilst direct discrimination cannot.

The court’s analysis on direct and indirect discrimination in Bull is useful to consider in the context of the present case. Although the source of the discrimination in Lee can be distinguished from that in Bull, the NICA still held that Mr Lee was directly discriminated against. The court’s decision was due to Mr Lee’s association with the LGBT community. The court held that “the benefit from the message or slogan on the cake could only accrue to gay or bisexual people”4. Since “ … the use of the word ‘Gay’ in the context of the message prevented the order from being fulfilled”, the bakery had thus refused to associate themselves with the LGBT community5. Moreover, they would not have opposed a cake that said “Support Marriage” or “Support Heterosexual Marriage”. As the 2006 Regulations protects the sexual orientation of the LGBT community, this was a case of direct discrimination. Yet, this is not a novel or odd concept - associative direct discrimination has been a feature of anti-discrimination law since Coleman v Attridge Law [2008] ECJ C-303/06. In this case, Ms Coleman was forced to resign from her job because she had a disabled child. The Employment Tribunal, with the clarification of the European Court of Justice, held that Ms Coleman was directly discriminated against because she was associated with her disabled son.

Alternatively, the court may find Lee to be a case of indirect discrimination. Although the NICA refused to comment on the possibility of indirect discrimination6, the UKSC should consider doing so in the interests of clarity. The regulations provide that the bakery must apply a provision, criterion or practice to Mr Lee which would also apply equally to persons not of the same sexual orientation. In this case, the bakery applied a “Support Gay Marriage” criterion to Mr Lee and all other customers. To prove indirect discrimination, the criterion applied must fulfil three requirements outlined in the regulations7.First, the criterion must place persons of Mr Lee’s sexual orientation at a particular disadvantage when compared with others.Second, the criterion must place Mr Lee at a disadvantage. Third, the bakery must show that the criterion applied is a proportionate means of achieving a legitimate aim. By refusing to bake the cake with the words “Support Gay Marriage” for any customer, the bakery puts homosexual individuals at a particular disadvantage because the message could only ever benefit homosexuals and the LGBT community. In addition, the criterion puts Mr Lee at a disadvantage due to his association with and campaign for same-sex marriage. Finally, whilst the bakers have a legitimate aim in protecting their religious beliefs, a proportionate approach would be “to refuse service [for] any religious or political message”8. It would be a disproportionate measure to provide a service that only fully benefits those with religious or political views the bakery agrees with. As a result, the court could conclude that the bakers indirectly discriminated against Mr Lee.

In addition, the NICA held that the bakery and its directors directly discriminated against Mr Lee on the ground of religious belief or political opinion9. It is significant that Northern Ireland’s legislature has tried five times between 2012 and 2015 to pass a Marriage Equality Act that would bring legal equivalence between Northern Ireland and the UK. The NICA and County Court noted that, given the political context, it is plain that support or opposition for gay marriage is regarded as a political opinion. For instance, the bakery would not have opposed a cake that read “Support Heterosexual Marriage” and it is evident that the bakery was opposed to gay marriage10. In rejecting the cake, the bakery did not wish to support individuals who held that view. However, the bakery cannot provide a service that only “reflects their own political or religious belief”11. As a result, the court should conclude that the directors directly discriminated against Mr Lee on the basis of his political opinion.

The UKSC was also asked to adjudicate on whether the 2006 Regulations and 1998 Order breached Article 9 and 10 of the ECHR. Both rights may be limited if they “are prescribed by law and are necessary in a democratic society”12. First, the bakery directors argued that the message was a form of forced speech and contrary to their Article 10 rights.However, the approach the Supreme Court should take is to acknowledge that when a baker conducts a business for profit, he does not associate himself with the message of his cake. For example, a cake celebrating a sports team’s victory does not indicate any support for that team from the baker.Particularly when other types of cakes are considered, the claim that a message is a form of forced speech loses its strength. On the evidence provided by the parties, the NICA found that the cake Mr Lee sought from the bakery was within the normal range of cakes it offered . The bakery advertised services for the transfer of an image and message onto a cake (subject to their terms and conditions). Therefore, the directors were not forced to speak because they had offered the service to the public on their terms. Second, the directors engaged Article 9 by manifesting their religious belief to oppose gay marriage because it was in their view contrary to God’s law. However, the regulations limiting the exercise of religious beliefs must be a proportionate means of achieving a legitimate aim. In this case, the legitimate aim of the 2006 Regulations is the protection of the rights and freedoms of Mr Lee and equal treatment in the commercial sphere. Lady Hale in Bull noted that the continuing legacy of discrimination against homosexuals should not be underestimated; Strasbourg requires “very weighty reasons to justify discrimination on the basis of sexual orientation”13.Analogously, the 1998 Order protects Mr Lee’s freedom to hold political opinions that the bakery may disagree with and to ensure equal treatment in the commercial sphere regardless of his views. As a result, the court should hesitate to rule that prohibiting service providers from discriminating against homosexuals and individuals with different political beliefs is a disproportionate limitation on their rights.

The implications of Lee are significant. An outcome in favour of Mr Lee will not only protect members of the LGBT community, but all individuals with protected characteristics under legislation. As a result, the UKSC should reach the same conclusion against a gay-baker discriminating against devout Catholics by refusing a cake with the message “Support Jesus”14. The claims made by the bakery should be dismissed to ensure that we live in “a society where all individuals are treated equally regardless of the colour of their skin, their sexual orientation, or indeed, their religion”15. The decisions made by the County Court and the NICA are welcomed in ensuring equal treatment in the commercial sphere. As the NICA concluded, a service provider “may not provide a service that only reflects their own political or religious belief in relation to sexual orientation”16. Therefore, the UKSC should follow the decisions of the lower courts and dismiss the claims made by the bakery.

[1] C Fenton-Glynn, ‘Replacing One Type of Oppression with Another? Same-Sex Couples and Religious Freedom’ (2014) 73 CLJ 31, 34.

[2] Bull, [29].

[3] ibid, [77].

[4] Lee at [58].

[5] ibid.

[6] Lee, [21].

[7] Regulations 3(b) of the 2006 Regulations.

[8] Lee, [100] (emphasis added).

[9] Articles 3 and 28 of the 1998 Order.

[10] Lee, [58].

[11] ibid [100].

[12] Articles 9(2) and 10(2) of the ECHR.

[13] Bull, [53].

[14] E Fitzsimons, ‘A Recipe for Disaster – When Religious Rights and Equality Collide through the Prism of the Ashers Bakery Case’ (2016) 15 Hibernian Law Journal 65, 78.

[15] Fenton-Glynn (n 1), 34.

[16] Lee, [100].

Article by Austin Chan
LLB (London School of Economics and Political Science) '20 and Notes Editor of the LSE Law Review 2019-2020