Well I think the Supreme Court got it right – probably. In Lee v Ashers Baking Company Ltd they hold that there was no discrimination when a bakery refused to bake a cake for a customer bearing the slogan ‘support gay marriage’. The decision overturns the previous findings of the Northern Ireland county court and the Northern Ireland Court of Appeal.
This is something I’ve written about before and I’m going to try not to be too smug about how closely my analysis back in 2015 is reflected in the leading judgment of Lady Hale (though it’s almost uncanny!). In this post I just want to set out the basic reasoning in the decision and respond in a general way to some of the online commentary I have seen criticising it.
There are two judgments given in the case. Lord Manse deals with constitutional issues regarding the role of the Supreme Court in cases dealing with Northern Ireland legislation. That is very much one for the purists – lets just say that he concludes that the Supreme Court did indeed have jurisdiction to hear the appeals.
The interesting decision is from Lady Hale, with whom the other judges agree. She divides the case into three key parts:
- The first deals with whether refusing to bake the cake amounted to direct discrimination on the grounds of sexual orientation. That claim is based on the Equality Act (Sexual Orientation) Regulations (Northern Ireland) 2006 but it is clear that her reasoning applies equally to any similar case brought in the rest of the UK under the Equality Act
- The second part deals with whether the refusal amounted to discrimination because of political opinion under the Fair Employment and Treatment (Northern Ireland) Order 1998. This is a piece of legislation that it unique to Northern Ireland. The Equality Act in the rest of the UK covers discrimination based on religious or philosophical belief, but that is different from the Fair Employment and Treatment Order. The Order specifically protects political opinion while the case law under the Equality Act stresses that a mere opinion (as opposed to a philosophical belief) is not protected.
- The third part looks at the application of the European Convention of Human Rights. Specifically it considers the right to freedom of Religion and belief under Article 9 and freedom of expression under Article 10.
Taking sexual orientation first, Lady Hale points out that the bakery refused to bake the cake because of the message printed on it, not because of the sexual orientation of the customer. Anybody, irrespective of their sexual orientation, would have met with the same refusal from Ashers if they had attempted to make them bake a cake saying ‘support gay marriage’.
That of course is not the end of the matter. The question is whether the refusal was ‘on the grounds of sexual orientation’ not whether it was ‘on the grounds of the sexual orientation of the customer’. The Regulations in Northern Ireland (and the Equality Act in the rest of the UK) are drafted widely enough to cover what we tend to call discrimination by association. But association with what?
There was no evidence that the bakery objected to the sexual orientation of any of the people with whom the customer was associated. In other words, if a straight man had tried to order the same cake for a party that would be exclusively attended by other straight people, then the bakers would still have refused to bake it. Support for gay marriage was not confined to gay people and could not be used as a proxy for the sexual orientation of individuals. As Lady Hale put it:
“In a nutshell, the objection was to the message and not to any particular person or persons.”
The Court’s view, it seems, is that discrimination by association only covers association with other individuals who themselves have the characteristic. At the heart of direct discrimination is less favourable treatment because of the protected characteristic of a person – albeit not necessarily the person bringing the claim. Mere association with the concept of a protected characteristic is not sufficient. Now you might disagree with that approach (see this article by academic Paul Johnson) but ultimately the law is what the Supreme Court says it is, so there we are.
As for political belief, Lady Hale is less clear. She seems to think that the answer may be the same as with the sexual orientation point – that the bakers objection to the cake was not the political opinion of the customer of anyone else, but the fact that baking the cake involved them promoting a particular message that they objected to. It would have been quite different for example if the bakery refused to serve customers who were known to support gay marriage – but that is not what happened here.
On the other hand there is a much stronger association between the message on the cake and the political opinions of the customer – and you could more easily infer that the customer shared the political opinion described on the cake than you could infer that he – or anyone else – was gay. On that basis she seems to accept that the refusal to bake the cake could in theory amount to discrimination based on political opinion (remember this is unlawful in Northern Ireland, but not in the rest of the UK) and then turns to consider whether a requirement to bake the cake would violate the human rights of the bakers.
Now I am not a human rights lawyer and I don’t feel qualified to critique Lady Hale’s approach here. But her view – and the view of the other members of the Court – is that being required to bake the cake would have meant that the bakers were being required to express a message with which they deeply disagreed. Freedom of expression included the freedom not to express a belief and the requirement to bake the cake would have interfered with that right. No justification had been shown for compelling the bakers to express an opinion with which they disagreed and so the Court would in any event have interpreted the Fair Employment and Treatment Order in such a way as to find that there was no discrimination when they refused to bake the cake.
There is an interesting thread on the Human Rights aspects of the case by Adam Wagner here but I would emphasise that the Supreme Court did not feel the need to refer to any human rights concepts when dismissing the claim of sexual orientation discrimination. It was only in the rather more uncertain realm of political opinion discrimination – which is unique to Northern Ireland – that they brought freedom of expression into the mix.
It is also worth stressing that this decision does not mean that businesses can refuse to provide their services to gay people – or that employers are free to discriminate against them. The Supreme Court has not carved out an exception from discrimination law to protect the right of people who have a religious objection to someone’s sexual orientation or (in Northern Ireland) their political opinion. What the Court has said is that direct discrimination is confined to the less favourable treatment of individuals either because of their protected characteristic – or the protected characteristics of other individuals. Discrimination law protects people rather than opinions. I think that that is right.
It feels slightly odd to be supporting a decision that has disappointed people whose world view I share and delighted those that I have little sympathy with. But on balance I think the Court’s approach is consistent with what the legislation actually says.
There is much more to pick apart in this case – and academics will be writing essays about it for years to come. I’ll certainly be writing and talking more on the subject and you can keep updated by subscribing to my newsletter. To see what I get up to in the nearest thing I have to a day job, please visit my website.