22 October, 2018
It has been impossible to miss the ongoing case of Lee v Ashers Baking Company Ltd and Others. It has courted a great deal of media attention over the course of the last few years given the strength of feeling among members of the public relating to the facts of the case.
The case was first brought before the courts in Northern Ireland following a dispute over the bakery's refusal to decorate a cake with a message regarding gay marriage.
Asher's Baking is owned by Mr and Mrs McArthur; Christians who hold the religious belief that the only form of marriage consistent with Biblical teaching and acceptable to God is that between a man and a woman. They have six shops, a staff of about 65 people, and they also offer their products on-line throughout the UK and the Republic of Ireland. Asher's offer a 'Build-a-cake' service by which customers can request images or inscriptions to be iced onto a cake. In May 2014 Mr Lee, a gay man, wished to take a cake to an event organised by campaigners for same sex marriage in Northern Ireland. He placed an order with Asher's for a cake iced with a depiction of the cartoon characters 'Bert and Ernie' and the words 'Support Gay Marriage'. Mrs McArthur initially took the order but later advised Mr Lee that she could not, in conscience, produce such a cake and gave him a refund.
As a direct result of the unique issues faced on partition of Ireland, protection against direct discrimination on grounds of religious belief or political opinion has constitutional status in Northern Ireland. Mr Lee brought a claim against the McArthurs and Asher's ('the Appellants') for direct and indirect discrimination on grounds of sexual orientation, contrary to the Equality Act (Sexual Orientation) Regulations (Northern Ireland) 2006 ('the SORs') and/or on grounds of religious belief or political opinion, contrary to the Fair Employment and Treatment (Northern Ireland) Order 1998 ('FETO') made under the Northern Ireland Act 1974. His claim was supported by the Equality Commission for Northern Ireland.
At first instance, the court held that refusing to complete Mr Lee's cake order was direct discrimination on all three grounds. Mr Lee was successful once again when the Appellants appealed to the Northern Irish Court of Appeal. The Appellants had argued that FETO and the SORs were incompatible with the McArthurs' rights under the European Convention on Human Rights (ECHR). Alongside holding that there had been direct discrimination on the grounds of sexual orientation, the Court of Appeal found that it was not necessary to interpret the SORs to take account of the McArthurs' ECHR rights.
The Appellants then referred the matter to the Supreme Court. There were jurisdiction issues put before the Supreme Court, but it is the discrimination and human rights considerations that are the prevailing issues courting public attention.
The substantive question was whether it was unlawful discrimination (either on grounds of sexual orientation, or on grounds of religious belief or political opinion) for the Appellants to refuse to supply a cake iced with the message "support gay marriage" because of the sincere religious belief of the McArthurs that gay marriage is inconsistent with Biblical teaching and therefore unacceptable to God.
In summary, the Court held that there was no discrimination on grounds of sexual orientation in this instance. And the Court concluded that neither the SORs nor FETO imposed civil liability on the Appellants for the refusal to express a political opinion contrary to their religious beliefs.
The Court began addressing this issue by emphasising article 1 of the Universal Declaration of Human Rights that everyone is "born free and equal in dignity and rights" and stressed that "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 or any of the other protected personal characteristics." However, the Court found that "this is not what happened in this case and it does the project of equal treatment no favours to seek to extend it beyond its proper scope."
Lady Hale gives the judgment on the discrimination issues with the remaining four judges in agreement.
The Court found that the Appellants did not refuse to fulfil Mr Lee's order because of his actual or perceived sexual orientation. The objection was to the message on the cake, not any personal characteristics of the messenger, or anyone with whom he was associated. The message was not indissociable from the sexual orientation of the customer, as support for gay marriage was not a proxy for any particular sexual orientation. The benefit of the message accrues not only to gay or bisexual people, but to their families and friends and to the wider community who recognise the social benefits which such commitment can bring. Thus, Lady Hale explained that there was no discrimination on grounds of sexual orientation in this case. "The bakery would have refused to supply this particular cake to anyone, whatever their personal characteristics. So there was no discrimination on grounds of sexual orientation."
The Court explained that it would be necessary to answer the following questions in order address this issue:
The Court found that the Appellants' objection was not to Mr Lee individually, but to being required to promote the specific message on the cake, in respect of which they did not agree. As such, the Court held that he situation was not comparable to people being refused jobs or services simply because of their religious faith, but it was arguable that the message was indissociable from Mr Lee's political opinion. It was therefore necessary to consider the impact of the McArthurs' ECHR rights on the meaning and effect of FETO.
The ECHR confers the rights to freedom of thought, conscience and religion (article 9) and to freedom of expression (article 10). These rights include the right not to be obliged to manifest beliefs one does not hold, and the Court believed that by forcing the Appellants to produce the cake requested by Mr Lee, their rights under the ECHR in this respect would be breached.
Under section 3(1) of the Human Rights Act 1998, all legislation is, so far as it is possible to do so, to be read and given effect in a way which is compatible with the Convention rights. As a result, FETO should not be read or given effect in such a way as to compel providers of goods, facilities and services to express a message with which they disagree, unless justification is shown for doing so (which in this case it was held not to have been shown).
Even if the Court had concluded that there had been discrimination on grounds of political opinion, no justification had been shown for the compelled speech which would be entailed for imposing civil liability for refusing to fulfil the order. Essentially, the Court was saying that the right not to be compelled to act to profess a political opinion that you do not hold, trumps the right not to be discriminated against on the basis of political opinion where justification does not exist.
The Appeallants 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 considered to be different from obliging them to supply a cake iced with a message with which they profoundly disagreed.
One quote from the judgment perhaps sums the matter up in a very accessible way:
"The less favourable treatment was afforded to the message not to the man"
The evidence was that they were quite prepared to serve him in other ways. The situation is not comparable to people being refused jobs, accommodation or business simply because of their religious faith. It is more akin to a Christian printing business being required to print leaflets promoting an atheist message.
The Court recognised that there were competing human rights of the individuals involved in this instance, as if often the case in matters that are pursued to such a high level in this arena, but clarified that if the result of a finding compels an individual to take an affirmative action which on a stand-alone basis would be a breach of their human rights (whether under domestic or European law) there would need to be a strong justification. Although there is no detail in the judgment as to what would constitute a valid justification, this could only ever be another individual's human right given the predominance and sanctity of the protection they are afforded. And so the argument becomes circular and the assertion that there is no hierarchy of human rights is once again called into question in practice.
This may be an unpopular decision back in Northern Ireland, where currently the LGBT civil rights cause is often described be the largest protest group within the country at the current time (which is particularly significant given the history of various protest groups within NI). Given the Assembly voting in favour of an equal marriage bill, and support for same-sex marriage emanating from all major political parties (even those considered to have a majority Catholic support), and despite NI being the only country within the UK without legalised same-sex marriage, the DUP are still blocking the passing of legislation allowing equal marriage in NI. As such, this judgment may be viewed by many as obstructive to the progress of LGBT rights in NI.
However, from a legal perspective, it is impossible to view the decision of the Supreme Court as anything other than correct. Imposing the requirement to take affirmative steps in breach of an individual's human rights is an onerous decision and should not be taken lightly. Additionally, it is fundamental that domestic legislation adopts, and is interpreted in light of the ECHR.
The only matter that was referred to briefly that causes some difficulty in my mind as to the correctness of the decision comes when considering the party to the proceedings as a company as opposed to an individual. As explained at the beginning of this article, Ashers is a large company, with approximately 65 employees. The Court only referred to this matter briefly explaining that:
"As the courts below reached a different conclusion on this issue, they did not have to consider the position of the company separately from that of Mr and Mrs McArthur. It is the case that in X v Switzerland (Application No 7865/77), Decision of 27 February 1979, and in Kustannus Oy Vapaa Ajattelija Ab v Finland (Application No 20471/92), Decision of 15 April 1996, the European Commission of Human Rights held that limited companies could not rely upon article 9(1) to resist paying church taxes. In this case, however, to hold the company liable when the McArthurs are not would effectively negate their convention rights. In holding that the company is not liable, this court is not holding that the company has rights under article 9; rather, it is upholding the rights of the McArthurs under that article."
I feel that this is an oversimplification of the matter that could potentially weaken the decision of the Supreme Court. It is clear that the any number of Asher's employees could have made the cake. It would not necessarily have even had to be at the same physical location of Mr and Mrs Asher. Indeed, it is entirely feasible that any employee could have agreed to make the same cake, or one with a similar message, without Mr and Mrs McArthur's knowledge at any point prior to this matter. I have difficulty accepting that an alternative finding would essentially negate their convention rights. I would question how they could seek to rely on the convention right when they themselves would not be the ones being compelled to act if another employee agreed to make the cake. Whilst the consideration of this issue would not be straightforward and would give rise to some complex legal issues, the failure to adequately address the matter potentially gives rise to companies acquiring rights under the Convention through the back door, and also potentially economises and commercialises human rights.
In summary, the decision of the Supreme Court was correct if Mr and Mrs McArthur were making the cake. If, however, they weren't directly involved (an alternative that was easily available to them) I believe a detailed analysis of the resulting implications was missing from the judgment. Indeed, if such a conciliatory approach had been taken in the first instance, I anticipate an eye-watering legal bill could have been avoided.
For more information contact Rosalind Leahy in our Employment & HR department via email or phone on 01772 220185. Alternatively send any question through to Forbes Solicitors via our online Contact Form.
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