THE owners of a bakery business who, because of their firmly held religious beliefs and their opposition to gay marriage, had refused to supply a gay customer with a cake to be iced with the words “support gay marriage” have won an important appeal to the Supreme Court, the highest court in the UK.
This overturns the earlier decisions of two courts in Northern Ireland, the county court and the Court of Appeal (News, 14 November 2014, 22 May 2015, 28 October 2016).
Five Supreme Court justices unanimously ruled on Wednesday that the owners were not guilty of unlawful discrimination on grounds of sexual orientation or on grounds of religious belief or political opinion. Moreover, the owners’ right to manifest their religion or belief included their right not to be forced to express a belief that they did not hold.
The Supreme Court drew a clear distinction between refusing to provide a cake with a particular message, for any customer who wanted a cake with that message, and refusing to provide any cake for a particular customer because of that customer’s characteristics.
The owners, a married couple, Colin and Karen McArthur, have run a bakery business since 1992. Their son, Daniel, is now the general manager. They have six shops, a staff of about 65, and they also offer products on-line throughout the UK and the Republic of Ireland. Since 2004, the business has been run through Ashers Baking Company Ltd, a name derived from Genesis 49.20: “Bread from Asher shall be rich and he shall yield royal dainties.”
The McArthurs are Christians and believe that the only form of sexual expression that is consistent with biblical teaching (and, therefore, acceptable to God) is between a man and a woman within marriage, and that the only form of marriage consistent with biblical teaching is that between a man and a woman. They run Ashers in accordance with their beliefs, but that and the biblical connection of the name Ashers were not advertised or made known to the public.
Gareth Lee is a gay man who volunteers with QueerSpace, an organisation for the LGBT community in Belfast. QueerSpace supports the campaign in Northern Ireland to enable same-sex couples to get married. A motion supporting that was narrowly rejected by the Northern Ireland Assembly on 28 April 2014.
Mr Lee was invited to a private event organised by QueerSpace at Bangor Castle on 17 May 2014 to mark the end of Northern Ireland anti-homophobia week and the political momentum towards same-sex marriage. He decided to take a cake to the party.
He had previously bought cakes from Ashers’ shop in Belfast, but he was not personally known to the staff. He knew nothing about the McArthurs’ beliefs about marriage, and neither the McArthurs nor their staff knew of Mr Lee’s sexual orientation.
Ashers Bakeries offered a “build-a-cake” service whereby customers could request particular images or inscriptions to be iced on a cake. On 8 or 9 May 2014, Mr Lee placed an order at the shop for a cake to be iced with his design, a coloured picture of cartoon-like characters, “Bert and Ernie”, the QueerSpace logo, and the words “Support Gay Marriage”.
Mrs McArthur took the order and raised no objection at the time, because she wished to consider how to explain her objection and to spare Mr Lee any embarrassment. But, during the following weekend, the McArthurs decided that they could not in all conscience produce a cake with that slogan.
On Monday 12 May, Mrs McArthur phoned Mr Lee and explained that his order could not be fulfilled, she apologised, and gave him a full refund. He made arrangements with another cake provider for a similar cake, which he was able to take to the party.
He complained to the Equality Commission for Northern Ireland, which supported him in bringing a claim for direct and indirect discrimination on the ground of sexual orientation, religious belief, or political opinion.
PAGareth Lee outside the Supreme Court in London, on Wednesday
The Supreme Court concluded, reversing the decisions of the two earlier courts, that there was no discrimination on the grounds of sexual orientation in this case.
Baroness Hale of Richmond, the President of the Supreme Court, said that in reaching that conclusion, the court was not seeking to “minimise or disparage the very real problem of discrimination against gay people”.
It was “deeply humiliating, and an affront to human dignity, to deny someone a service because of that person’s race, gender, disability, sexual orientation or any of the other protected characteristics”. But that was not what had happened in this case, she said, and it did “the project of equal treatment no favours to seek to extend it beyond its proper scope”.
Protection against direct discrimination on grounds of religious belief or political opinion has constitutional status in Northern Ireland. One question that arose was whether the bakery discriminated against Mr Lee on the grounds of his political opinions by refusing to supply him with a cake iced with that particular message.
Baroness Hale said that the owners’ objection was not to Mr Lee because he, or anyone else with whom he associated, held political opinions supporting gay marriage. The objection was to being required to promote the message on the cake. The less favourable treatment was afforded to the message and not to the man, she said. It was not as if he was being refused a job, or accommodation, or baked goods in general, because of his political opinion.
The evidence was that the bakery was quite prepared to serve him in other ways. The situation was not comparable to people being refused jobs, accommodation, or business simply because of their religious faith. It was more akin, Baroness Hale said, to a Christian printing business being required to print leaflets that promoted an atheist message.
The Supreme Court said that it was also appropriate to consider the McArthurs’ rights under Article 9 of the Human Rights Convention, which provides that everyone has the right to “manifest his religion or belief in worship, teaching, practice and observance”. That includes the freedom both to believe and not to believe, and to practise or not to practise a religion. That has been demonstrated in the decisions of other courts.
The Grand Chamber of the Human Rights Court in Strasbourg has ruled that it was a violation of Article 9 to oblige non-believers to swear a Christian oath as a condition of remaining members of Parliament in San Marino. And the Judicial Committee of the Privy Council ruled last year that a Muslim petty officer in the Royal Bahamas Defence Force had been hindered in the exercise of his constitutional right to freedom of conscience when he had been obliged, on pain of disciplinary action, to remain present and doff his cap during Christian prayers at ceremonial parades and at morning and evening colours.
The Supreme Court said that what mattered was that, by being required to produce the cake, the McArthurs were being required to express a message with which they deeply disagreed. Businesses offering services to the public are not entitled to discriminate on certain grounds: the bakery could not refuse to provide a cake, or any other product, to Mr Lee because he was a gay man or because he supported gay marriage.
But that important fact did not amount to a justification for something completely different, namely, obliging the McArthurs to supply a cake iced with a message with which they profoundly disagreed, Baroness Hale said.
The McArthurs would be entitled to refuse to do that, whatever the message conveyed by the icing on the cake — for example, support for living in sin, support for a particular political party, or support for a particular religious denomination. The fact that this particular message had to do with sexual orientation was irrelevant to the claim, she said.
Earlier this year, in the case of Masterpiece Cakeshop Limited v. Colorado Civil Rights Commission, the Supreme Court of the United States, by a majority of seven to two, gave judgment in favour of a Christian baker who had refused to create a wedding cake for a gay couple because of his opposition to same-sex marriage, even though it was not suggested that the couple wanted any particular message or decoration on the cake.
The US court recognised that, although businesses could not generally refuse to supply goods and services for gay weddings, this baker saw creating a wedding cake as an expressive statement involving his First Amendment rights to freedom of speech and the free exercise of his religion.
These cases from the highest courts of the UK and the United States demonstrate the difficulties that arise when there is a conflict between the rights of one party to manifest his or her religion and beliefs and the rights of another party not to be discriminated against on the grounds of a protected characteristic such as sexual orientation.
In the cases involving bakers and cakes, the US Supreme Court went so far as to decide that the bakers were entitled even to refuse to provide a cake at all for a gay couple. The Supreme Court of the UK was more nuanced, holding that refusing to supply a cake at all to a gay man would be unlawfully discriminatory, but that the bakers were within their rights in refusing to ice the cake for him with the slogan to which they took exception.
That principle could apply to the provision of other goods and services, and which side of the line any particular facts fell would be a matter for the court to decide. In the McArthurs’ case, Baroness Hale said that there could be no doubt, because 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.
The Court of Appeal of Northern Ireland had expressed some concern that the Equality Commission of Northern Ireland, which supported Mr Lee in bringing his claim against the McArthurs, might have created the impression that it was not interested in assisting members of the faith community when they found themselves in difficulties as a result of their deeply held religious belief.
Baroness Hale emphasised that it was obviously necessary for a body such as the Equality Commission to offer its services to all people who might need them because of a protected characteristic, and not to give the impression of favouring one such characteristic over others.
Speaking after the Supreme Court ruling was delivered, on Wednesday, Daniel McArthur said: “We’re delighted and relieved at today’s ruling. We always knew we hadn’t done anything wrong in turning down this order. . . We’re particularly pleased the Supreme Court emphatically accepted what we’ve said all along — [that] we did not turn down this order because of the person who made it, but because of the message itself.
“The judges have given a clear signal today. . . Family businesses like ours are free to focus on giving all their customers the best service they can — without being forced to promote other people’s campaigns. I know a lot of people will be glad to hear this ruling today, because this ruling protects freedom of speech and freedom of conscience for everyone.”
Speaking outside the Supreme Court after the ruling, Mr Lee said that the ruling made him feel like “a second-class citizen” of Northern Ireland.
The full ruling can be read here.