“Support Gay Marriage”
The Supreme Court has handed down its decision in the so called ‘Gay Wedding Cake’ case. The Court has backed the Northern Ireland bakers that refused to bake a cake with the words ‘Support Gay Marriage’ on it on the grounds of sexual orientation.
Sexual Orientation
In the reasons for the Judgement, Lady Justice Hale summarises the decision on a number of aspects. On the ‘sexual orientation’ aspect she sets out:
“The district judge 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 [22], or anyone with whom he was associated [33-34]. 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 [25]. 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 [33]. Thus, there was no discrimination on grounds of sexual orientation in this case.”
Background to the Appeal
Mr and Mrs McArthur are 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 are the owners of a bakery business (‘Ashers’). Ashers offered a ‘Build-a-cake’ service by which customers could 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 Ashers 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.
Mr Lee brought a claim against the McArthurs and Ashers (‘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’). His claim was supported by the Equality Commission for Northern Ireland. The district judge in the county court held that refusing to complete his order was direct discrimination on all three grounds.
The appellants appealed by way of case stated to the Court of Appeal, arguing that FETO and the SORs were incompatible with the McArthurs’ rights under the European Convention on Human Rights (ECHR). The Court of Appeal served a devolution notice and notice of incompatibility on the Attorney General, who then became a party to the proceedings. On 24 October 2016 the Court of Appeal dismissed the appeal, holding that Mr Lee had suffered direct discrimination on grounds of sexual orientation and that it was not necessary to interpret the SORs to take account of the McArthurs’ ECHR rights.
On 28 October 2016, before the order dismissing the appeal had been drawn up, the Attorney General gave notice to the Court of Appeal, requiring it to make a reference to the Supreme Court under paragraph 33 of Schedule 10 to the Northern Ireland Act 1998. The Court of Appeal concluded that he had no power to do so as the proceedings had ended. The Attorney General therefore made two references to the Supreme Court of devolution issues under paragraph 34, the first on the validity of FETO and the SORs and the second on whether the Court of Appeal should have made a reference. The appellants applied for permission to appeal against the order of the Court of Appeal, and this application was heard together with the Attorney General’s references.
The full judgment can be read here (pdf).
Colorado Gay Wedding Cake
The ruling follows a similar case in America, reported here. In that case, the Supreme Court ruled in favour of a Colorado baker who had refused to bake a cake for a same sex couple due to the baker’s religious beliefs.
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