Information contained in this publication is intended for informational purposes only and does not constitute legal advice or opinion, nor is it a substitute for the professional judgment of an attorney.
Cakes have become an unlikely battleground for gay rights over the past few years. In the United States there has been a spate of cases where individuals have challenged refusals to provide cakes for same-sex weddings or in support of efforts to legalise same-sex marriage.
Earlier this year, the U.S. Supreme Court ruled on the case of a baker who refused to provide a wedding cake to a same-sex couple. This was a very narrow ruling, finding that the Colorado Civil Rights Commission had violated the baker’s rights to freedom of expression, protected under the First Amendment of the U.S. Constitution, in pursuing its case against the baker.1
Now the UK Supreme Court has ruled on a similar case, finding that a bakery that refused to supply a pro-same-sex marriage cake did not discriminate against the man ordering it. Put simply, it found that the bakery objected to the message on the cake, not to the man ordering it, so there was no discrimination. The decision has caused some controversy, but in truth it is a very narrow judgment contained to its facts. It does, however, give rise to a certain degree of uncertainty that will no doubt fuel future litigation.
The background is simple. Ashers Baking Company is a chain of bakery shops in Northern Ireland. They offer a ‘build a cake’ service, where a customer chooses images or messages to decorate a cake and the bakery duly creates the cake to order. Mr. Lee (who is gay) requested a cake decorated with a message supporting same-sex marriage (same-sex marriage was legalised in the rest of the UK in 2013, and in Ireland in 2015, but is not currently permitted in Northern Ireland). The bakery initially accepted the order, but later told Mr. Lee that it would not be able to provide the cake, citing its deeply-held religious belief that marriage was only between a man and a woman.
Mr. Lee was aggrieved by this response and brought a claim. A court in Northern Ireland found that he had been directly discriminated against on the basis of his sexual orientation and political opinion (religious beliefs and political opinions have special status in Northern Irish law, so discrimination on the grounds of political opinion is a more expansive category than discrimination on grounds of belief under the Equality Act 2010, which applies to the rest of the UK). Mr. Lee was awarded £500 in compensation. The Northern Ireland Court of Appeal agreed that there had been direct discrimination because of sexual orientation.
The UK Supreme Court’s decision
The Supreme Court disagreed with the lower courts and found there was no direct discrimination based on sexual orientation. This was for the simple reason that the bakery’s objection was to the message, not the messenger. The bakery did not appear to know that Mr. Lee was gay; it simply did not agree with the message on the cake. The bakery would have refused to provide the cake for anyone, regardless of their sexual orientation.
The Supreme Court’s conclusion regarding the claim of discrimination based on political opinion is similar, finding that the objection was to the cake’s, not Mr. Lee's, political opinion. However, the court went on to acknowledge that Mr. Lee may have been perceived as having the same political opinion as the cake.
It therefore had to consider what impact the bakers’ rights to freedom of religion and expression, protected under the European Convention on Human Rights, had on the court's conclusion regarding political opinion discrimination. In short, it found that the bakers’ right to freedom of religion and expression won out against Mr. Lee’s right to not be discriminated against because of his political opinion. The court concluded that the bakers should not be obliged to “supply a cake iced with a message with which they profoundly disagreed.” This is where the court created confusion as it did not properly explain why it made this conclusion.
A whole host of cases in the UK have found that businesses cannot cite their religious beliefs to deny services on the grounds of sexual orientation. The Supreme Court did not clarify why it came to a different conclusion in this case. It may be that there is an underlying assumption that political opinion is deemed less worthy of protection from discrimination than sexual orientation – but this is never stated. In failing to properly explain its reasoning, the Supreme Court may have created space for businesses to deny a service because they disagree with the message the customer is seeking to convey.
What should UK employers learn from this?
This is a decision that has garnered a lot of press attention, but it does not change the law relevant to employers in the UK– subjecting someone to less favourable treatment because of their sexual orientation or political opinion will still (depending on the facts, of course) be discrimination. This case does not create a ‘conscience clause’ that allows opt-outs from equality legislation. Instead, the reach of this case is limited. The Supreme Court simply found that the bakery objected to the message, not the man.
Nevertheless, the decision is not clear in its scope. It arguably carves out a space where businesses can deny services if it disagrees with the customer’s message and we will no doubt see further legal challenges attempting to widen (or narrow) the size of this space.
You can read the UK Supreme Court’s full judgment in Lee v Ashers Baking Company Ltd here.
1 For more information on this decision, see Mark Callaghan, The US Gay Cake Case, GQ Littler (June 28, 2018); Emily Haigh, Devjani Mishra, and Mark Phillis, The Supreme Court’s Ruling in Masterpiece Cakeshop: A Masterpiece on Dodging Key Constitutional Issues, Littler ASAP (June 4, 2018).