Sexual Discrimination: The ‘gay-cake’ case
Friday 26th October 2018
In Lee v Ashers Baking Company Limited and others, the Supreme Court (‘UKSC’) has ruled that a bakery did not discriminate on grounds of sexual orientation when refusing to ice a message supporting gay marriage on a cake.
“A person (‘A’) discriminates against another person (‘B’)” where “on grounds of sexual orientation, A treats B less favourably than he treats or would treat other persons”
Mr Lee is a gay man who wished to purchase a cake with the message ‘Support Gay Marriage’, and featuring the logo of Queerspace, an organisation at which Mr Lee volunteered, and which supports the LGBT community in Belfast.
Ashers is a bakery owned and operated by a Christian family who hold religious beliefs that gay marriage is inconsistent with Biblical teaching. Ashers’ brochure does not indicate any restrictions on the decorations that may be added to cakes, and Ashers’ initially took the order, before subsequently informing Mr Lee that it could not be fulfilled and providing Mr Lee with a full refund.
Decision and comment
The UKSC found that the reason for treating Mr Lee less favourably than another prospective customer had not been his sexual orientation, but the intended pro-gay marriage message. The UKSC found that any customer who had requested the same or similar message would have been treated in the same manner.
In declining to set out a definitive test, the UKSC has blurred the boundaries of discrimination law, leaving a degree of uncertainty around associative discrimination. Where will the trigger point lie between the extremes of discrimination occurring specifically because of sexual orientation, and discrimination that has something to do with the sexual orientation of some people? It certainly appears that a ‘message, not the messenger’ defence could be put forward in the future.
Finally, what of the balancing act of workplace rights, with religious belief on one scale, and the sometimes incompatible LGBT rights on the other?
This then is a decision with as many questions as answers, and which leaves the door ajar for future development of the law.