The facts of Ashers have been set out on this Blog previously, so only a brief recap is necessary here. The respondent was a gay man who ordered a cake from the appellant. He wanted a cake with a picture of Bert and Ernie along with the headline caption ‘Support Gay Marriage’ on it. After the order was accepted, one of the proprietors of the bakery phoned the respondent indicating that the order could not be fulfilled because the bakery was a ‘Christian business’ and that the order should never have been accepted. Supported by the Equality Commission for Northern Ireland, a claim was brought arguing that the appellant had breached the statutory obligation imposed on it by the Equality Act (Sexual Orientation) Regulations (Northern Ireland) 2006 not to discriminate in the provision of goods, facilities and services. The District Judge found in favour of the respondent. The bakery appealed to the Court of Appeal of Northern Ireland on the basis that the Regulations were incompatible with Article 9 of the European Convention on Human Rights.
Sir Declan Morgan LCJ, delivering the judgment of the Court, dismissed the appeal and upheld the judge’s finding of direct discrimination. In doing so, he placed significant reliance upon the judgment of Baroness Hale in Bull v Hall  UKSC 73. In Bull it was held that, ‘I take there to be direct discrimination when the category of those receiving a certain advantage and the category of those suffering a correlative disadvantage coincide exactly with the respective categories of persons distinguished only by applying a prohibited classification.’ The Court found that the reason why the bakery refused to fulfil the order was because it would not provide a cake with a message supporting a right to marry for those who were not heterosexual.
It was argued on behalf of the appellants that the 2006 Regulations had to be read down using section 3 of the Human Rights Act 1998 in order to ensure compliance with their rights enshrined in Article 9 of the European Convention on Human Rights. The Lord Chief Justice, again placing reliance on Bull, rejected this contention. The key question when considering the interaction between the Regulations and Article 9 was whether there was a reasonable relationship of proportionality between the aim sought to be achieved by the Regulations and the means used to achieve that aim. In finding that there was such a relationship, Sir Declan made the following, important observation:
‘Allowing people to discriminate on that basis [i.e. treating people differently because of their sexual orientation] because of religious belief would be a licence to discriminate because they disagreed with the law… To prohibit the provision of a message on a cake supportive of gay marriage on the basis of religious belief is to permit direct discrimination. If businesses were free to choose what services to provide to the gay community on the basis of religious belief the potential for arbitrary abuse would be substantial.’
The Court stated that the appellants were free to manifest their religious beliefs in other ways, provided they did not constitute unlawful indirect discrimination. The Court concluded that the 2006 Regulations should thus be interpreted in accordance with their natural meaning.
The judgment has been welcomed in some quarters but met with derision in others. As an example of the latter, the proprietors of the bakery stated that, ‘[t]his ruling undermines democratic freedom, religious freedom and freedom of speech.’
Yet the 2006 Regulations do create an exemption for those organisations the purpose of which is to practice, advance, or teach the practice, of a religion or belief. This does not apply to an organisation whose sole or main purpose is commercial. The appellants ran a commercial organisation, not one whose purpose is to practice, advance or teach the practice of a religion or belief. Giving businesses the freedom to choose what services to provide to the gay community on the basis of religious belief has the potential for arbitrary abuse. In the Northern Irish context, this is particularly pernicious. As the Lord Chief Justice acknowledged,
‘The LGBT community has endured a history of considerable discrimination in this jurisdiction… It is obviously of importance that the LGBT community should feel able to participate in the commercial life of this community freely and transparently.’
The Supreme Court of the United States has yet to decide whether to grant leave in Masterpiece Cakeshop, Ltd. v. Colorado Civil Rights Commission, a case with facts similar to Ashers. If the Court does hear the case, it is hoped that it bears in mind the point made by the Lord Chief Justice of Northern Ireland: that members of the LGBT community should feel able to participate in the commercial life of their communities freely and transparently.
If you’ll pardon the self-citation, SCOTUS only very rarely takes any notice of the judgments of non-US courts: see ‘How Relevant to the United Kingdom are the “Religious” Cases of the US Supreme Court?’ (2016) Ecclesiastical Law Journal 18(3) 300-315, in which I also look at the use by SCOTUS of overseas material.
How would anyone feel about a cake saying GERRY ADAMS IS A SCUMBAG?
Could it, would it be said that a baker of Republican politics was discriminating against a customer of Unionist politics by refusing to bake it?
Or – now let’s make it interesting – a cake saying THE RC CHURCH PERSECUTES LGBT PEOPLE?
This case was a set-up, like the B and B case in England. If it was not a set-up the customer would ahve taken his business elsewhere.