(Not) supporting gay marriage at the cake counter: Lee v Ashers Baking

What follows was based solely on news reports. A formal case-note based on the judgment itself is now available here: Lee v Ashers Baking Co Ltd & Ors – an analysis.

Regular readers will no doubt recall that the proprietors of Ashers Bakery refused to bake a cake for Gareth Lee bearing the slogan “Support Gay Marriage” with the Sesame Street puppets Bert and Ernie. He had ordered the cake for an event to mark International Day Against Homophobia and Transphobia in May 2014 and Ashers initially accepted his order but later cancelled it and returned his money. Subsequently, the Equality Commission for Northern Ireland supported legal action against the bakery for alleged discrimination on grounds of sexual orientation and (possibly) on grounds of political opinion – and drew a sharp public rebuke from the First Minister, Peter Robinson MLA, for doing so.

The case was heard at Belfast County Court by District Judge Brownlie in April and in her reserved judgment handed down today she found that the defendants had discriminated unlawfully against Mr Lee on grounds of sexual orientation. Mr Lee was awarded £500 damages (plus, presumably, costs).

According to Deborah McAleese of the Belfast Telegraph, who helpfully tweeted bits of the judgment (a transcript of which is not yet available), DJ  Brownlie accepted that the defendants were Christians and regular churchgoers who sought to live at all times in accordance with the doctrines of Bible. She accepted that their religious beliefs were genuine and that, because of them, they felt that they could not promote same-sex marriage. Nevertheless, as much as she acknowledged their religious beliefs, they were in business to provide service to all – and that was what the law prescribed. The defendants were not a religious organisation: they were a business for profit and there were no exceptions available to them. Mr Lee had been discriminated against on grounds of sexual orientation directly and without justification on both political and religious grounds; and even if she had been persuaded that Ashers had been unaware of Mr Lee’s political beliefs she still would have found that they had treated him less favourably.

As to Article 9 ECHR, though she accepted the sincerity of the defendants’ Christian beliefs, they were limited as to how they could manifest them. There were competing human rights in play in the case; and the current law limited the manifestation of the defendants’ religious beliefs. The defendants were entitled to hold and manifest their religious beliefs but only in accordance with the law: to do otherwise would be to allow religious belief to dictate the law.

In the meantime, Paul Givan MLA, of the Democratic Unionist Party, has consulted on bringing forward a private Members’ bill to include a so-called “conscience clause” in equality legislation, arguing that businesses should have the right to refuse to provide services which they believe could compromise their religious beliefs. The bill has not yet been introduced; and Sinn Féin has said that it will veto it in any case. In the wake of today’s judgment Mr Givan was reported by the Belfast Telegraph as saying, “The Equality Commission should apologise. I hope this case will be appealed.”  But hang on, Paul Givan MLA: Gareth Lee, with the support of the ECNI, won his case. So precisely what does the Commission have to apologise about? Trying to make sure that the law is adhered to?

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And while we’re on the subject, Ireland’s referendum on amending the Constitution to allow for legislation on same-sex marriage will be held this coming Friday, 22 May.

Update: the transcript is available here.

Cite this article as: Frank Cranmer, "(Not) supporting gay marriage at the cake counter: Lee v Ashers Baking" in Law & Religion UK, 19 May 2015, https://lawandreligionuk.com/2015/05/19/not-supporting-gay-marriage-at-the-cake-counter-lee-v-ashers-bakery/

13 thoughts on “(Not) supporting gay marriage at the cake counter: Lee v Ashers Baking

    • Why the (ha ha) surprise?
      Which bit of discrimination law allows a defence on breach of copyright grounds to a discrimination claim on the basis of sexuality and political opinions?

      • As I say, I know the equality issues had to be dealt with – and the campaign groups supporting the Ashers no doubt wanted the claim to proceed on that basis to start the ball rolling on a definitive NI ruling on the issue.

        But, a non-campaigning lawyer for the Ashers would, I imagine, have defended the case on the basis that it would have been unlawful for them to produce the cake as requested because it was a breach of copyright; leaving the Ashers free to continue baking and the campaign groups in need of another “case” in which to test the law.

  1. If Ashers/The Christian Institute succeed in their long-standing campaign to allow certain Christians to discriminate against a group they don’t like in the provision of goods and services ON RELIGIOUS GROUNDS, then what next in Northern Ireland? A DUP Council refusing to give good council houses to ‘Taigs’ on the grounds that the Roman Catholic Church is the Biblical ‘whore of Babylon’, and the Pope the ‘Antichrist?’

    There is only one place where this sort of thing leads – BACKWARDS! and the authorities are quite right to take public policy considerations into account to stop it.

      • Mr Ould has missed my point here. If discrimination against gays is legitimised that why not legitimise discrimination against Catholics? And we all learned the hard way where this leads. This is Northern Ireland after all!

  2. As to the issue of potential breach of copyright, while Gavin has a fair point in theory, that is not what the defendants actually did in practice. And suppose, for the sake of argument, they had said, “Sorry, no: we can’t do that because it’ll be a breach of copyright”, what would have happened if Gareth Lee had then replied, “OK, I can quite see that: so will you do large linked wedding rings and keep the slogan ‘Support Gay Marriage'”? Presumably they wouldn’t have been prepared to do that either.

    It wasn’t, surely, the images of Bert and Ernie that the defendants were objecting to – it was the slogan.

  3. “There were competing human rights in play in the case; and the current law limited the manifestation of the defendants’ religious beliefs. The defendants were entitled to hold and manifest their religious beliefs but only in accordance with the law: to do otherwise would be to allow religious belief to dictate the law.”

    This surely begs the question. The point of human rights law is to provide fundamental legal rights in respect of which other laws, if they contravene those rights, can be found deficient. To say therefore that current law limits the manifestation of religious beliefs is to have already determined that equality laws prohibiting discrimination are to be interpreted as overriding claims a person might make on the basis of their right to manifest their religious beliefs. Certainly it may have been the intention of the legislature to have so limited religious belief manifestation, but the question is whether the legislature was correct to attempt to frame such a law, or whether in fact such a law violates the human right to manifest religious belief, and thus that a conscience clause of some kind should have been included to protect such rights of conscience. Of course the court has now determined that no violation of religious belief manifestation rights is entailed by the law, but this was not a foregone conclusion, and to say that it is is to say (as I suspect you and many think) that of course rights to religious belief manifestation should be overridden by equality laws. Indeed, I suspect that the purpose for the defendant in fighting this case was to show either that the right to manifest religious belief does require a conscience clause (and to create one by judicial judgment), or (what was always more likely) to show to right-thinking citizens that it should, and that our current equality laws are illiberal.

    As for religious belief dictating the law – yes, I believe that the point of human rights law is to dictate the law, and yes, human rights do include a right to manifest religious belief. In this sense then it is an integral part of human rights law to allow religion to dictate the law in certain ways, if only by including conscience clauses and exemptions – unless of course you assume (as many appear to) that the right to manifest religious belief is a kind of lesser human right, the unwanted guest at the party, the elderly relative you invite out of duty but would rather did everyone a favour and stayed at home.

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