'Gay Cake' Case: Supreme Court Rules in Favour of Ashers

Posted in : Supplementary Articles NI on 10 October 2018
Legal-Island
Legal-Island

The UK Supreme Court has delivered the much anticipated ruling in the Ashers v Lee ‘gay cake’ case. The five justices on the Supreme Court were unanimous in their judgement.

The high-profile dispute began in 2014 when the bakery refused to make a cake with the slogan "Support Gay Marriage". The owners of Ashers bakery, Mr and Mrs McArthur, sought to appeal the decision of the Northern Ireland Court of Appeal which previously held that Mr Lee had been discriminated against on grounds of sexual orientation, political opinion and religious belief, in accordance with the relevant case law, but today the Supreme Court has overturned that decision.

Delivering the judgment, Lady Hale confirmed the Supreme Court had jurisdiction to hear the appeal. The Court ruled the appellants did not refuse to fulfil Mr Lee’s order because of his sexual orientation, his personal characteristics or anyone with whom he was associated, but objected to the message on the cake, "Support Gay Marriage". The Court stated the appellants would have refused to make such a cake for any customer, irrespective of their sexual orientation and therefore ruled there was no discrimination on grounds of sexual orientation.

The Court also allowed the appeal on the religious belief or political opinion ground. It interpreted the Fair Employment and Treatment Order in light of the rights to freedom of thought, conscience and religion (Article 9 ECHR) and to freedom of expression (Article 10 ECHR). These freedoms include the right not to be obliged to manifest a belief that one does not hold.

 As the appellants’ objection was not to Mr Lee but to being required to promote the message on the cake, the Court concluded the situation was not comparable with people being refused jobs or services simply because of their religious faith, but held it was arguable the message could not be dissociated from Mr Lee’s political opinion. The Court was therefore obliged to consider the impact of the McArthurs’ convention rights.

The McArthurs could not refuse to provide their products to Mr Lee because he was a gay man or because he supported gay marriage, but that was different from coercing them to supply a cake iced with a message with which they fundamentally disagreed.

The Court held FETO should not be read or given effect in such a way as to compel them to do so unless justification was shown, and it had not been in this case.

The Court therefore held that there was no direct discrimination on the grounds of either sexual orientation or religious belief or political opinion.

In her concluding remarks Lady Hale said: "This conclusion is not in any way to diminish the need to protect gay people and people who support gay marriage from discrimination.”

"It is deeply humiliating, and an affront to human dignity, to deny someone a service because of that person's race, gender, disability, sexual orientation, religion or belief.

"But that is not what happened in this case."

In a press statement the Equality Commission for Northern Ireland expressed disappointment at the judgment:

“The Supreme Court has overturned these findings and we will have to look at the implications of its judgment carefully.” Dr. Michael Wardlow, Chief Commissioner of the Equality Commission for Northern Ireland said.

“There is a concern that this judgment may raise uncertainty about the application of equality law in the commercial sphere, both about what businesses can do and what customers may expect; and that the beliefs of business owners may take precedence over a customer’s equality rights, which in our view is contrary to what the legislature intended.”

Read the full judgment:
https://www.supremecourt.uk/cases/docs/uksc-2017-0020-judgment.pdf

Or watch Lady Hale deliver the judgment here.

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Louise McAloon will be discussing the ramifications of this case in detail at the Legal-Island Annual Review of Employment Law 2018 conferences in November.

This article is correct at 10/10/2018
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