Supreme Court: no discrimination in “gay cake” case
Thursday 11th October 2018
In Lee v Ashers Baking Company Ltd, the SC held that refusing to supply a cake with the message “Support Gay Marriage” did not amount to direct discrimination on the grounds of sexual orientation.
Mr & Mrs McArthur, directors of Ashers Baking Company Ltd, are Christians who oppose same-sex marriage. Mr Lee, a returning customer, placed an order for a cake with the words “Support Gay Marriage”. ABC refused to make it.
The Northern Ireland District Court and CA held that ABC had directly discriminated against Mr Lee on the grounds of his sexual orientation. Although it was accepted that ABC would have provided the cake without the message “Support Gay Marriage” and would have also refused to supply the requested cake to a heterosexual customer, both the NIDC and CA found that Mr Lee’s support for gay marriage could not be separated from his sexual orientation; it was “indissociable”.
The SC disagreed, considering that ABC did not refuse to fulfil Mr Lee’s order because of his actual or perceived sexual orientation. They objected to the message and not to any personal characteristics of the messenger or of anyone with whom they associate. There was no evidence that ABC discriminated on the grounds of sexual orientation, given they employed and served members of the LBGT community.
The SC considered that the NIDC and NICA misunderstood the role of “indissociably” in direct discrimination. “Indissociability” is only relevant where the “criterion used as the reason for the less favourable treatment is not the protected characteristic itself but some proxy for it”. Support for gay marriage is not a proxy for any particular sexual orientation, as people of all sexual orientations can and do support gay marriage. The SC held that less favourable treatment which had something to do with sexual orientation of some people was not enough. A much closer connection is needed. Mr Lee’s claim of discrimination on the grounds of political opinion was also rejected.
All information in this update is intended for general guidance only and is not intended to be comprehensive, or to provide legal advice.