Let Them Buy (Gay) Cake: Anti-Discrimination in Northern Irish Courts
Over the weekend, the same-sex marriage referendum in Ireland dominated headlines around the world. The week before the referendum, the media’s attention was focused on Northern Ireland (‘NI’) and another case that touched upon same-sex marriage.
In May 2014 Gareth Lee, a gay man living in NI, was planning to attend a private event to mark the end of anti-homophobia week. The event was also intended to mark the increasing political momentum in NI for the legalisation of same-sex marriage (the Marriage (Same Sex Couples) Act 2013 does not apply to NI). Mr Lee decided to buy a cake for the event and ordered one from Ashers Baking Co Ltd. Mr Lee asked for a picture of Burt and Ernie to be iced on the cake along with the slogan ‘Support Gay Marriage’. Ashers accepted the order, but Mr Lee subsequently received a telephone call from the proprietor of the bakery (Karen McArthur) who explained that hers was a ‘Christian business’ and that they would be unable to fulfill the order. Mrs McArthur apologized and refunded Mr Lee his money. Mr Lee, supported by the Equality Commission for Northern Ireland, filed a claim in the County Court alleging that Ashers had unlawfully discriminated against him on the grounds of sexual orientation, religious belief and political opinion. This blog will focus on the sexual orientation claim.
The claim was brought under the Equality Act (Sexual Orientation) Regulations (Northern Ireland) 2006. As a preliminary matter, the judge found that the defendants did have the knowledge or perception that the plaintiff was gay and / or associated with others who are gay. The correct comparator in this case was held to be a heterosexual person placing an order for a cake with the graphics ‘support heterosexual marriage’. The judge rejected the defendants’ submission that icing the cake in the way the plaintiff wished would have been requiring them to promote and support same-sex marriage. Indeed the judge held that the defendants were not a religious organisation and the 2006 regulation do not exempt non-religious organisations from their scope. Citing Baroness Hale judgment in Bull v Hall (‘the gay B&B case’) the District Judge held that,
‘the purpose [of the Regulations] was to secure that people of homosexual orientation are treated equally with people of heterosexual orientation by those in the business of supplying goods, facilities and cervices. Parliament was very well aware that there were deeply held religious objections to what was being proposed and careful consideration had been given to how best to accommodate these within the overall purpose… and Parliament did not insert a conscience objection clause for the protection of individuals who held such beliefs’.
The judge concluded that the defendants had directly discriminated against the plaintiff. The judge accepted that the 2006 Regulations did limit the defendants’ manifestation of their religious belief but held that any this was necessary in a democratic society and a proportionate means of achieving a legitimate aim.
This case is yet another example of the fraught relationship between the right to manifest religious belief and the right to be free from discrimination based upon sexual orientation. The direction of the case law so far suggests that when these two rights collide, at least in the context of providing goods or services, it is the latter that will prevail. For this reason, given the judge’s findings of fact, her conclusion that the defendants directly discriminated against the plaintiff is relatively uncontroversial (although others have disagreed with this characterization. See Alasdair Henderson on the UK Human Rights Blog). Indeed, the judge relied heavily on previous case law. Whilst the case, in my opinion, is legally uncontroversial, politically the judgment has proved to be anything but uncontroversial. One prominent politician in NI characterized the judgment as representing ‘a dark day for justice and religious freedom in Northern Ireland’.
It is hoped that the judgment in Lee v Ashers does not prompt a backlash. The DUP (one of the parties that forms the NI Executive) has already proposed a ‘conscience clause’ that would exempt religious people from having to abide by anti-discrimination legislation, with the First Minister commenting that, ‘[m]ore and more the balance is tipped against people of faith’.
NI is now the only country in Western Europe in which same-sex couples are not permitted to marry. With the judgment in Lee v Ashers reaffirming that the law does not permit discrimination in the provision of goods and services, it is hoped that politicians will soon come to accept that it should not endorse discrimination in who can benefit from the institution of marriage.