Is it directly discriminatory for a Christian baker to refuse to bake a cake containing a message supportive of gay marriage?
No, held the Supreme Court in Lee v Ashers Baking Company Ltd and Others.
Mr Lee asked Ashers Baking Company to bake a cake with a photo of Bert and Ernie from Sesame Street and the wording ‘Support Gay Marriage’. Ashers Baking is a family-owned business. Its owners are religious Christians. They declined to bake the cake due to their religious beliefs.
Mr Lee brought a discrimination claim in the Northern Irish courts and succeeded at first instance and before the Northern Irish Court of Appeal. However the Supreme Court has overruled these decisions.
The Supreme Court looked at the interface between the protection afforded to individuals against discrimination on grounds of sexual orientation (argued by Mr Lee) and the protection afforded to individuals to express or not express a political belief (argued by Ashers).
The Supreme Court found that the bakers’ refusal was not because of Mr Lee’s sexual orientation: that was irrelevant to their decision. It was thus not direct discrimination in the ordinary sense. The Supreme Court was also not satisfied that this was associative direct discrimination. For associative discrimination to succeed there needs to be an association with particular persons and discrimination due to that association. That was absent in this case. The fact that the message ‘Support Gay Marriage’ had something to do with sexual orientation of some people was not sufficient to make out the claim.
Moving on to 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. Infringement of those rights could not be justified by imposing an obligation to supply a cake iced with a message with which the bakers profoundly disagreed.