Lee v Ashers Baking Co Ltd & Ors – an analysis

Yesterday I posted a fairly brief summary of the Ashers Bakery case from media reports. Following is a more considered analysis based on the judgment itself.

The facts

The plaintiff, Gareth Lee, was a gay man associated with QueerSpace, an organisation for the lesbian, gay, bisexual and transgendered community in Northern Ireland. To mark the International Day Against Homophobia and Transphobia, in May 2014 he ordered a cake from Ashers Bakery bearing the slogan “Support Gay Marriage” and a picture of the Sesame Street puppets Bert and Ernie. He had previously bought things at the same branch of Ashers and had become aware from a leaflet that he could have a cake iced with a graphic of his own design [7]. Ashers initially accepted his order but the third defendant, Mrs Karen McArthur, subsequently telephoned him to say that his order could not be fulfilled because Ashers was “a Christian business and, in hindsight, she should not have taken the order”: she apologised and refunded his money [9].

In Lee v Ashers Baking Co Ltd & Anor [2015] NICty 2 Mr Lee claimed before Belfast County Court that he had been discriminated against contrary to the provisions of the Equality Act (Sexual Orientation) Regulations (Northern Ireland) 2006 and/or the Fair Employment and Treatment (Northern Ireland) Order 1998 [1]. He stressed that he was not “asking the defendants to share or support my perceived political views on gay marriage. The graphic did not say this. I was simply asking them to provide me with the service they advertise in their shops” [11]. The defendants denied that they had discriminated unlawfully, asserting that they were entitled to refuse to supply services that could conflict with their freedom of conscience or religious belief [2]. Mrs McArthur stated that:

“[h]aving taken the order, I immediately felt guilty about it. I knew that using our skills and creativity to produce a cake supporting gay marriage – which we consider to be contrary to God’s word – was something which would be on my conscience. If we provided the cake in these terms, I would feel that I was betraying my faith and failing to live in accordance with what God expects of me. … Individually and as a family we decided that what was to be on the cake was against our Christian beliefs … We could not promote same-sex marriage because it is against God’s word … I wish to emphasise that this is in no way related to Mr Lee’s sexual orientation. We have many gay customers whom we serve regularly without any difficulty. We also have at least one gay member of staff … Similarly, the decision was not based on Mr Lee’s political opinion or religious beliefs … we had no idea what his opinions or beliefs were, if any” [17].

The issues

The issues before the Court were as follows:

  1. whether there had been any direct discrimination on grounds of sexual orientation;
  2. whether there had been any indirect discrimination on grounds of sexual orientation;
  3. whether there had been any direct discrimination on grounds of political opinion or religious belief;
  4. whether there had been any indirect discrimination on grounds of political opinion or religious belief; and
  5. ff so, whether the relevant provisions of the 2006 Regulations or the 1998 Order should be read down so as to take account of the defendants’ protected rights to manifest their religious belief in accordance with Article 9 ECHR or their freedom of non-expression under Article 10 ECHR [26].

DJ Brownlie found for the plaintiff.

The judgment

DJ Brownlie began from the proposition that

“[w]hat we are faced with in this case are competing rights under the [European] Convention [of Human Rights]. There is the defendants’ right under Article 9 of the Convention to manifest their religion without unjustified limitation and the right under Article 14 of the plaintiff to enjoy his right under Article 8 to respect for his private life without unjustified discrimination on grounds of his sexual orientation. The plaintiff also has additional rights under the 2006 Regulations” [81].

She pointed out that both sexual orientation and religion were “highly protected” rights under the ECHR [85]. Crucially, however, she concluded that

“[t]he 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. That is a matter for the Assembly” [91].

The law

“… must protect all. It must protect the rights of the defendants to have and to manifest their religious beliefs but it also recognizes that the rights of the plaintiff not to be discriminated because of his sexual orientation must also be protected. If the plaintiff was a gay man who ran a bakery business and the defendants as Christians wanted him to bake a cake with the words ‘support heterosexual marriage’ the plaintiff would be required to do so as, otherwise; he would, according to the law be discriminating against the defendants. This is not a law which is for one belief only but is equal to and for all. The defendants are entitled to continue to hold their genuine and deeply held religious beliefs and to manifest them but, in accordance with the law, not to manifest them in the commercial sphere if it is contrary to the rights of others [93 & 94].

As to the defendants’ argument that Article 10 (expression) meant that they could not be compelled to express or commit themselves to a viewpoint or to appear to give support to another’s views, she concluded that what the defendants had been asked to do “did not require them to support, promote or endorse any viewpoint” and did not engage Article 10 – and her view was that, even if she was wrong in that conclusion and Article 10 was engaged, any infringement of the defendants’ rights was justified under Article 10 (2) because they were prescribed by law, necessary in a democratic society and for the protection of the rights of others [95].

If Ashers was liable under the 2006 Regulations for the unlawful acts of its two directors, Mr & Mrs McArthur, they in turn were made liable by virtue of Regulation 24 for aiding Ashers to act unlawfully. The liability of the company itself arose as a result of the actions  of Mr & Mrs McArthur in discriminating unlawfully against the plaintiff, because those actions or otherwise were within their control [97].

In conclusion, DJ Brownlie pointed out [98] that it had long been recognised in Convention jurisprudence that a limited company could not invoke Article 9 rights, citing in support of that view Kustannus Oy Vapaa & Ors v Finland [1996] ECommHR Application No. 20471/92, in which the Commission (not the Court) stated that

“The Commission has repeatedly held that a church body or an association with religious and philosophical objects is capable of possessing and exercising the right to freedom of religion, since an application by such a body is in reality lodged on behalf of its members … By contrast, the Commission has held that a limited liability company, given the fact that it concerns a profit-making corporate body, can neither enjoy nor rely on the rights referred to in Article 9 para 1.”

The company was therefore liable to the plaintiff for unlawful discrimination contrary to the provisions of the 2006 Regulations and the 1998 Order and could not rely on the protection afforded by Article 9 [99].

Discussion

The first point to note, perhaps, is this: equality law in Northern Ireland is different from the law in England and Wales. In particular, the Equality Act 2010 does not extend to Northern Ireland. Secondly, this is a judgment by Belfast County Court, not the Northern Ireland Court of Appeal; and however careful and comprehensive it may be (which it undoubtedly is), and even though courts in England and Wales occasionally cite Northern Irish judgments, this particular one does not carry enormous authority as precedent, even in Northern Ireland itself.

Moreover, as DJ Brownlie pointed out in her judgment [32], when the Office of the First Minister and Deputy First Minister consulted about likely content in advance of enacting the 2006 Regulations it made no bones about their intended impact. In its analysis of the responses to the consultation the Office said this:

” …where businesses are open to the public on a commercial basis, then they have to accept the public as it is constituted … In respect of ‘Christian businesses’ again the Government accepts that some people hold very forthright views and do not want to provide a service to some people because of their sexual orientation. Having considered this issue the Government is firmly of the view that any person or organisation that opens a business to the public for the purpose of providing goods, facilities or services has to be prepared to accept the public as a whole no matter how that public is constituted. It would not be acceptable for a hotel owner to turn away a person on the basis of their skin colour or if they were disabled any more so than because of their sexual orientation.

Some respondents argued that people should be able to refuse to drive a car for a couple attending their civil partnership ceremony, or for a photographer to refuse to take pictures of such a ceremony. These Regulations do not prohibit people from turning down business from any source, but they do protect people from having their sexual orientation used as the reason for turning the business down” [32: emphasis added].

So if that was what the Regulations were intended to do ab initio, it should have come as no surprise to anyone when they did just that in the present case.

Colin Murray argues in his post at Human Rights in Ireland that the decision in Lee v Ashers Baking Co cannot be distinguished from the Supreme Court’s decision in Bull & Anor v Hall & Anor [2013] UKSC 73 about the illegality of refusing of a double-bedded room to a same-sex couple. Whether or not the UKSC struck the correct balance in that case is still a matter of considerable controversy in some quarters – but Ashers Baking Co is certainly on all fours with it and it is difficult to see how a District Judge could have disregarded it.

Postscript

After I posted the above, Alasdair Henderson suggested on the ÛK Human Rights Blog that DJ Brownlie’s reasoning is flawed, insofar as she conflates support for same-sex marriage with a homosexual orientation “when they are clearly different things. Many people who are not gay (including the Prime Minister) support same-sex marriage. Some people who are gay (including Rupert Everett and Dolce and Gabbana) oppose same-sex marriage”.

It has also been suggested to me in a subsequent discussion that, in deciding [42] that “if a comparator is required, the correct comparator is a heterosexual person placing an order for a cake with the graphics either ‘Support Marriage’ or ‘Support Heterosexual Marriage'” she made a wrong choice – on the basis that supporting heterosexual marriage is uncontroversial because opposite-sex marriage is legal in Northern Ireland whereas same-sex marriage is not.

Both are fair points: and I imagine that they are both likely to be argued if and when her decision is appealed.

updated 21 May

Cite this article as: Frank Cranmer, "Lee v Ashers Baking Co Ltd & Ors – an analysis" in Law & Religion UK, 20 May 2015, https://lawandreligionuk.com/2015/05/20/lee-v-ashers-baking-co-ltd-ors-an-analysis/

19 thoughts on “Lee v Ashers Baking Co Ltd & Ors – an analysis

  1. Thank you, very helpful as always. A few observations and questions if I may:

    1. I must admit that I had not appreciated that Article 9 (manifest religion) only applies to religious organisations, not to businesses. Is it therefore assumed that a profit-making business can have no religious or philosophical basis, that these are mutually exclusive categories? Also, does it mean Article 9 gives no help to employees in the workplace?

    2. The part about being allowed to turn down business from any source as long as it’s not for ‘this list of reasons’ does make the whole thing look a bit flimsy. So could they just have refused and given no reason, and if pressed just said they didn’t feel like it?

    3. It does seem odd that a business can’t refuse to provide a service which provides support to a cause they don’t agree with. I would have thought that a printers, say, could decline business for causes it didn’t support, and even give that as the reason. Is that not the case?

    4. It’s even somewhat odd that this is even about discriminating on the basis of sexual orientation rather than merely about not supporting a cause. It’s not as though being against same sex marriage is the same thing as being anti-homosexuality.

    5. A deeper question here, which obviously the court could not address, is whether there really is a human right not to be discriminated against on the basis of sexual orientation, one which is clearly viewed by the courts as more essential than the right to manifest religion. If homosexuality is viewed (as it is by, say, the RC Church) as a kind of unfortunate psychosexual disorder, then should Roman Catholics not be allowed to treat it as such? Even given the human right to respect for private life, which permits homosexual acts in private, whence then comes the human right not to be discriminated against on the basis of sexual orientation? I guess this is linked to the bigger question of where human rights come from in the first place.

    • I think the point about Article 9 not applying to businesses is this: a business is a legal person in itself but not a natural person: so, for example, the legal entity that is Ashers Baking Company Ltd cannot, as a business, have beliefs of its own. Obviously, the directors and the employees can and do have beliefs – but they are natural persons rather than abstractions.

        • I take your point; and if he’d said that I would have trashed the comment. But that’s not quite what he said.

          • I’ll give him points for creativity – he managed to slip in a a sophisticated theological slur by reciting Ratzinger’s infamous 1986 pastoral letter that, for all intents and purposes, re-pathologized homosexual orientation (“a disordered sexual inclination which is essentially self-indulgent”) by embedding it in a hypothetical that was a tautological absurdity. As a gay man, I reject the factual assertion that my very nature is “disordered” and “inclined towards evil” made on a public forum that I assume is not subject to magisterium of the Roman Catholic church. If I come across as annoyed and offended and less than graceful, it comes with being a minority in a heterosexist and homophobic world. You seem like a generally kind man and usually empathetic in your blogging so I just assumed you were in a rush and so I left a gentle reminder to help you see why the last bit of his comment was so offensive. Thanks…

          • Sorry: I read it as posing a hypothetical question on what he understood to be the teaching of the Roman Catholic Church on the matter: “(as it is by, say, the RC Church)”. I thought that that was, in fact, the official view of the Roman Catholic Church and therefore merely a statement of fact. If I was wrong about that, I apologise. We do try very hard not to let bits of random insult slip through per incuriam: but sometimes what is and what is not offensive is a fairly fine judgment.

  2. Most interesting. If the plaintiff Gareth Lee had been heterosexual rather than homosexual, would his case have failed?

    • I assume that, mutatis mutandis, he would: the language of the Equality Act (Sexual Orientation) Regulations (Northern Ireland) 2006 is neutral, so presumably heterosexuality is as much a protected sexual characteristic as homosexuality is: see Regulation 3.

  3. The Regulations relate to refusing to trade with someone because of their sexual orientation: I have no quibbles with this, nor it seems (from Mrs McArthur’s carefully-worded statement) do Ashers, since this would not compromise their religious convictions, any more than driving or photographing gay couples would (though providing a bed in one’s home is more difficult). I’m not clear whether the judge accepted their position on this: ‘she must have known he was gay’ hardly addresses the point, and is arguably in itself a discriminatory statement. There is no reason why I, or any other heterosexual person, might not have ordered such a cake.

    No, the real issue – and the one that is of wider import, and needs clarification (perhaps on appeal) – is whether legal and/or natural persons can be required to ‘publish’ – whether in icing or in print – views with which they disagree, whether these are matters of pure opinion (such as ‘Support Gay Marriage’, since this is not yet legal in NI) or are statements that attract domestic or European equalities protection that may be in conflict with ECHR religious rights.

    Is it in fact the case that a business cannot have beliefs of its own – eg a ‘mission statement’ that it will not engage in environmentally-damaging activity?

    Michael Ainsworth

    • “Is it in fact the case that a business cannot have beliefs of its own?” Yes: I think that is the case, because a business is not a natural person. The people within it can and do have beliefs, individually and collectively, but the business itself is an inanimate object.

      • This is black letter anti-discrimination law that has been long settled in both the US (well WAS settled – depends on whether Alito was telling the truth in Hobby Lobby) and i assume the UK so this constant invocation from conservative evangelicals and catholics on both sides of the Atlantic of religious conscience as some sort of universal exemption from anti-discrimination laws is puzzling. Either they have naively taken the politically motivated tactical litigation efforts of Paul Diamond, CLC, CI and similar pressure groups as sincere and likely to succeed or this clamour of outrage on social media and the screeching headlines of the tabloids (the coverage in the Belfast Torygraph has been surreal) is meant to set the stage for a fight in parliament over US style religious exemptions.

  4. Mmmm? Suppose I advertised a service as a speech-writer. I’m asked to write a speech eulogizing same-sex marriage: I decline as I believe marriage means a man and a woman. Would and how could the consequences be different if:
    1. The enquirer was a heterosexual?
    2. The equirer was a homosexual?
    3. I’m a freelance sole trader?
    4. I trade as a limited company but am the managing director and ‘the directing mind’ of the company?
    5. I advertise that (in 3 and/or 4 above) I only undertake work to which I have no conscientious objection ?
    6. There are plenty of other speech-writers available?
    7. I trade in England?

    Is the law in a mess if Articles 9 and 10 are to have any sensible effect?

  5. I somehow doubt you would have left that bit of the comment stand if it were defaming a racial minority group but I am not surprised. Heterosexuality, despite all the bleating and chest pounding from the anti-gay evois and RCs, is still privileged to such an extent that even so-called liberals treat homophobia like its an academic abstraction subject to reasonable rather than a social evil. Even Frank was cowed into softening his original analysis…

    • No: I wasn’t “cowed” into anything: I just had further thoughts on the judgment after reflecting on some others’ criticisms.

      I don’t think that DJ Brownlie’s overall conclusion was at all incorrect: so far as I can see, the behaviour of Ashers Baking was a breach of the 2006 Regulations. On reflection, however, I’m not so sure that DJ Brownlie’s analysis was entirely faultless.

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