I expect that most readers will have seen some of the widespread media coverage concerning the Northern Irish case of Lee v Ashers Baking Co Ltd and others. I have pointed out for some time that, particularly in the context of protection from discrimination relating to religion or philosophical belief, there is an obvious risk that such protection will at times collide with the protection from discrimination on other grounds, an obvious example being sexual orientation. Which one is to prevail? An almost impossible question for a court to rule on you might think, and so it has turned out. Unsurprisingly the Bakery announced on 28 May that it intends to appeal the decision.
District Judge Brownlie, sitting in the County Court in Northern Ireland, had the unenviable task of deciding whether the rights of a gay man who wanted a cake decorated with a pro-gay message should take precedence over the objections of a bakery which objected on religious grounds. Although it is not an employment case, the relevance for employment disputes concerning competing and conflicting claims for protection from discrimination is obvious.
I think that it is fair to say that the parties were at opposite ends of the relevant spectrum. Mr Lee is associated with an organisation called Queerspace which “seeks to increase visibility of the [LBGT] community in a positive manner and to counteract the disregard and negative images presented to the general public over the past centuries”. On the other hand the bakery business derived its name from Genesis, Chapter 49:20 which says “Bread from Asher shall be rich, and he shall yield royal dainties”. In many respects the details of the judgment are fairly unimportant and, of course, as a decision of the County Court in Northern Ireland it is not binding on any other courts. The judge found as facts that the Bakery cancelled the order because of Mr Lee’s support of a political campaign for gay marriage and the primary reason for doing so was as a result of genuine and strongly held religious beliefs, including a belief that the business should be run in accordance with God’s wishes. As put by their solicitors:
In fulfilling your client’s order, our client would have been acting so as to promote and support your client’s political campaign for a change in the law of Northern Ireland so as to enable same sex marriage which objective is directly contrary to our client’s religious faith and conscience. Our client is entitled to refuse to create a polemical message which conflicts with their religious belief and conscience.
Judge Brownlie pointed out that the crucial question in any case of alleged discrimination is to ask why the claimant received less favourable treatment. In this case she found that the Bakery had directly discriminated against the Bakery on the ground of religious belief and/or political opinion and it followed that the claim must succeed.
As for the question of competing rights with reference to the European Convention on Human Rights she stated that “Where a person seeks accommodation for a religious belief which is discriminatory on a prohibited ground, and outside the specific exemptions provided for by Parliament or the Assembly itself, then the refusal to grant such accommodation should be justified. If this approach is not followed it would be necessary for the civil courts to weight the value of particular religious beliefs against the rights of other protected groups..” and noted that, in another case concerning religious beliefs Mr Justice Munby had warned that “a secular judge must be very wary of straying across the well recognised divide between church and state…the court recognises no religious distinctions and generally speaking passes no judgment on religious beliefs or on the tenets, doctrines or rules of any particular section of society”. She reached her conclusion as follows:
The law in Northern Ireland prohibits the Defendants from acting as they did and, in relation to the requirement to balance competing interests, I find that the extent to which the 2006 Regulations and/or the 1998 Order limit the manifestation of the Defendant’s religious beliefs, those limitations are necessary in a democratic society and are a proportionate means of achieving the legitimate aim which is the protection of the rights and freedoms of the Plaintiff. I am satisfied that this does not give rise to any incompatibility between the rights of the Defendants under Article 9 and the rights of the Plaintiff under the 2006 Regulations and/or the 1998 Order. To do otherwise would be to allow a religious belief to dictate what the law is.
Although the judgment has led to a good deal of debate and statements by some that they will continue to act in the same way as did the Bakery in this case, this is in fact a very well reasoned judgment which reaches what has to be the correct conclusion under the law as it stands. As the judge correctly points out, if that is not what society wants then that is a question for the lawmakers rather than those who apply the law.