In May 2015 I reported the decision of District Judge Brownlie, sitting in the Northern Ireland County Court in Lee v Ashers Baking Co Ltd and others, otherwise known as the “gay cake case”. I pointed out at the time that the District Judge was given a very tough call in essentially being asked to rule whether, in terms of “competing discriminations” religious belief prevailed over sexual orientation.
In brief, Gareth Lee, a gay man associated with an organisation called Queerspace made an enquiry with Ashers Bakery about them making a cake with a logo on it. He was told that if he brought in a picture of the logo it could be scanned and placed on the cake. A few days later Mr Lee returned to the shop with an A4 sheet of paper showing a picture of Bert and Ernie from Sesame Street (the logo for Queerspace) with a message below which read “Support Gay Marriage”. About four days later one of the bakery owners, Karen McArthur phoned Mr Lee and told him that they could not fulfil the order because the bakery was “a Christian business”. The business owners confirmed that they considered gay marriage to be sinful. Mr Lee was refunded and went elsewhere for his cake.
In the County Court Judge Brownlie found that the bakery owners understood that Mr Lee was gay and associated with others who were gay. However, what Mr Lee wanted them to do would not require them to support or promote gay marriage. They cancelled the order for a reason that was inextricably linked to sexual orientation and Mr Lee did not share their particular religious and political opinion which confined marriage to heterosexuals. Accordingly there was direct discrimination. The Judge also found that, particularly in the prevailing political climate (concerning whether the Northern Ireland Assembly should vote on same-sex marriage) Mr Lee’s support for gay marriage was a political opinion. Since the bakery owners refused to provide the service requested they had treated Mr Lee less favourably on this basis and this also amounted to direct discrimination.
At the time I observed:
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.
The bakery owners immediately announced their intention to appeal and the appeal judgment was published on 24 October.In his judgment Northern Ireland’s Lord Chief Justice, Sir Declan Morgan, noted that that Northern Ireland has a large and strong faith community and that such people made a contribution to the economy, adding that there should be no “chill factor to their participation”. He noted, as did the County Court Judge, that the relevant legislation boils down to a single question: “did the claimant, on the prescribed ground, receive less favourable treatment than others”. In this case it was the use of the word “gay” that prevented the order from being fulfilled. On this very clear basis there was direct discrimination. Having considered the decision of the Supreme Court in Bull v Hall (hoteliers denying double rooms to same sex and unmarried couples) the Lord Chief Justice pointed out that the bakery owners could change their offers in order to manifest their beliefs, for example by providing birthday and other special event cakes but without messages. Critically, what Mr Lee had requested did not require the McArthurs themselves to promote or support gay marriage: “The fact that a baker provides a cake for a particular team or portrays witches on a Halloween cake does not indicate any support for either”.