Giving the judgment of the court in Lee v Ashers Baking Co (2018), Lady Hale discusses ‘indissociability’ when determining whether direct discrimination has occurred. Indissociability refers to circumstances in which the criterion used ‘is not the protected characteristic itself but some proxy for it’ (paragraph 25). Lady Hale points to Preddy v Bull (2013), where the marriage-civil partnership criterion was—at the time—indissociable from sexual orientation. In doing so, Lady Hale distinguishes Ashers because ‘no such identity’ exists between the cake’s message supporting gay marriage and the customer’s sexual orientation.
Lady Hale’s analysis seems half-baked. In previous blog posts, Daphne Romney QC identifies the confusion that Ashers creates and Davina Cooper analyses the complexities of the interaction of production, sexual orientation and religion. For UK discrimination law, though, I think that one major worry is the court’s treatment of indissociability. At least two problems emerge.
Precedent: how stringent is ‘indissociability’?
The first is precedential. It would make Lady Hale’s reasoning in Ashers more convincing if she looked more closely at her own reasoning in Bull. In the latter, Lady Hale reasons that the court can ‘leave aside that some people of homosexual orientation can and do get married’ and ‘some people of heterosexual orientation can and do enter civil partnerships’ (paragraph 29). Despite this complexity, Lady Hale proceeds to find indissociability.
In this finding, the ‘principal purpose’ of marriage and civil partnership is presented as a legal framework in which committed adult relationships can flourish. This raises more questions than it answers. Even accepting this purpose, why should we ‘leave aside’ people in unconventional arrangements? If anything, their existence provides one reason why marriage and civil partnership might not be reduced to marital and civil partners’ sexual orientations. Meanwhile, in Ashers, Lady Hale uses the fact that ‘[p]eople of all sexual orientations … can and do support gay marriage’ to deny indissociability (paragraph 25). But why should we now interpret indissociability much more stringently, requiring complete overlap between the criterion and the protected characteristic? Without answering these questions, courts cannot expect indissociability to be a coherent analytical device.
Rationale: what is the point of ‘indissociability’?
The second problem is about indissociability’s rationale. While its doctrinal role is to demarcate direct discrimination, it is increasingly difficult to articulate its deeper purpose. One view might see indissociability as a commitment to finding a case’s substance, thereby not confining the law to superficial analysis of form. We see this in many jurisdictions—primarily the EU, but even the US’s formalistic case law recognises that a discriminatory purpose need not be ‘express or appear on the face’ of a criterion: Washington v Davis (1976). Although this might explain Bull, Ashers uses indissociability to give the quite unreal impression that gay people and messages supporting gay marriage have little to do with each other. Simultaneously, the cake’s message is recognised as indissociable from expressing a political opinion (paragraphs 54 and 55).
As a result, indissociability hardly operates as an anti-formalistic device. This might be a problem of fact. After all, Corey Stoughton notes that we have ‘to squint rather vigorously to conjure a credible image’ of a baker who refuses to make cakes supporting gay marriage but who fully supports LGBTQ+ people.
Broader tensions in discrimination law
In another sense, it highlights a tension in the structure of UK discrimination law: attempting to avoid superficiality by means of a rigid distinction that affects whether justification is available. This distinction, moreover, does not rest on the discriminator’s intention or motivation—factors that receive no examination in Ashers. Yet perhaps if these factors were deemed relevant (as Lord Hope considered in R (E) v JFS (2009)), legal analysis would be better able to get to the reality of a situation.
Given its place in the Equality Act 2010, the direct-indirect distinction seems here to stay. But, with the loosening of EU law’s influence post-Brexit, indissociability may not be. The next decision in this area should clarify indissociability’s stringency and the precise role of factors like intention. It should also seriously question whether indissociability remains a helpful way to combat formalism in discrimination law.