The “gay cake” case: Ashers Baking loses its appeal

Slightly updated version of the note posted earlier.

The background

Ashers Baking is owned by the McArthur family. It offered to bake cakes iced with a graphic of the customer’s own design. Gareth Lee is gay; and to mark the International Day Against Homophobia and Transphobia, in May 2014 he ordered a cake from Ashers bearing the slogan “Support Gay Marriage” and a picture of the Sesame Street puppets Bert and Ernie. Ashers initially accepted his order but Mrs Karen McArthur subsequently telephoned him to say that his order could not be fulfilled because Ashers was a Christian business and that, with hindsight, she should not have taken the order in the first place. She apologised and refunded his money.

Before Belfast County Court, in Lee v Ashers Baking Co Ltd & Anor [2015] NICty 2 Mr Lee had claimed 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. District Judge Brownlie found for Mr Lee, concluding that Ashers Baking was liable under the 2006 Regulations for the unlawful acts of its two directors, Mr and Mrs McArthur, and that they, in turn, were liable under Regulation 24 for aiding Ashers Baking to act unlawfully. As a result of their actions, the company had discriminated unlawfully against Mr Lee. They appealed and the matter came before the Court of Appeal in Belfast by way of case stated.

The decision of the Court of Appeal

In Lee v McArthur & Ors [2016] NICA 29the Court of Appeal [Morgan LCJ, Weatherup and Weir LJJ] held that Ashers Baking Company had directly discriminated against Gareth Lee on grounds of sexual orientation by refusing to make a cake supporting same-sex marriage. It further held that the relevant legislation was not incompatible with Articles 9, 10 or 14 ECHR. Continue reading