Asher’s Bakery and Direct Discrimination

10 October 2018

The UK's highest court ruled that Ashers bakery's refusal to make a cake with a slogan supporting same-sex marriage was not discriminatory.

The Christian owners of a Northern Ireland bakery have won their appeal in the so-called "gay cake" discrimination case.

With thanks to Daniel Barnett's Employment Law Bulletin for the following coverage of Lee v Ashers Baking Company Ltd and Others.

Ashers Baking is a family-owned business. Its owners are religious Christians. Mr Lee asked them to bake a cake with a photo of Bert and Ernie from Sesame Street and the wording 'Support Gay Marriage'. They declined to bake it due to their religious beliefs.

Mr Lee brought a discrimination claim through the Northern Irish courts and succeeded at first instance and before the Northern Irish Court of Appeal. However, the Supreme Court overruled those decisions.

It looked at direct discrimination on grounds of both sexual orientation and political belief.

The bakers' refusal was not because of Mr Lee's sexual orientation: that was irrelevant to their decision. It was thus not direct discrimination in the ordinary sense. The Supreme Court was also not satisfied that this was associative direct discrimination, i.e. because Mr Lee was likely to associate with the gay community. For associative discrimination to succeed there needed to be an association with particular persons and discrimination due to that association. That was absent in this case. That the message had something to do with sexual orientation of some people was not sufficient to make out the claim.

Moving on to political belief, the Court relied heavily on the rights relating to religion and expression under Articles 9 and 10 of the European Convention on Human Rights. Those rights include an entitlement not to be forced to express a political opinion in which you do not believe. Infringement of those rights could not be justified by an obligation to supply a cake iced with a message with which the bakers profoundly disagreed.