Wednesday, October 10, 2018

It's OK Not to Bake a Gay Cake - Supreme Court

In an eagerly-awaited Judgment today the Supreme Court has confirmed that a bakery in Northern Ireland did not discriminate on when they refused to accept an order to make a cake bearing a slogan supportive of gay marriage.

This is the so-called "Gay Cake" case.

Mr and Mrs McArthur are Christians. They run a chain of cake shops in Northern Ireland. Mr Lee is gay. He asked the bakery to provide him with a cake showing a picture of Sesame Street characters Bert and Ernie (who, ironically, have recently been the subject of debate over their sexuality, with the "official" pronouncement being that they do not have one) and headed "Support Gay Marriage."

As the McArthurs had a religious objection to gay marriage they refused to provide a cake containing a message with which they disagreed.

Mr Lee sued the bakery for unlawful discrimination on grounds of sexual orientation.

He succeeded at first instance and at the Court of Appeal.

The bakery appealed again to the Supreme Court, the highest court in the land.

The Supreme Court unanimously upheld the appeal. They found that Mr Lee was not refused the service because of either his actual or perceived sexual orientation but because of the bakery's objection to the message on the cake. The bakery had apparently fulfilled orders for Mr Lee in the past and also employed gay people so it was not his sexuality per se with which they had an issue.   

This was a case of direct discrimination, so the Claimant had to prove that it was his sexual orientation which was the cause of the discrimination. The outcome might conceivably have been different if the case could have been pursued as an indirect discrimination claim (where the bakery imposed a requirement which was more difficult for a gay person to comply with) or as a protected characteristic "related" discrimination.

The Court also found that the rights to freedom of religion and expression include the right not to be compelled to manifest a belief which one does not hold.

This was a very difficult case. Many of the cases on religious and sexual orientation discrimination revolve around the issue of whether the freedom to express your sexuality "trumps" the right to express disapproval of same sex relationships on religious grounds, or vice versa. This particular case also raises the very thorny issue as to whether Mr Lee's freedom of expression takes precedence over the bakers'. While it could be argued that Mr Lee could always take his business elsewhere, what if he lived in a conservative community where every baker took the same view? And is baking a cake for someone endorsing the views on it? On the other hand, whilst gay marriage is generally supported by the majority of society today, what if it had been a "Nazi cake"?