It was decided by the Supreme Court in Lee v Asher Baking Company Limited and others  UKSC 49 that the Christian owners of a bakery had not directly discriminated on the religious belief, political opinion or sexual orientation when they refused to make a cake stating the words “Supporting Gay Marriage” to a gay customer.
In Northern Ireland discrimination which is based on sexual orientation is illegal. The Equality Act (Sexual Orientation) Regulations (Northern Ireland) 2006 (SI 2006/439) (the SORs) bans discrimination based on sexual orientation in relation to the provision of goods, facilities and services in Northern Ireland. Under regulation 3(1) of this act, it states that if one person “A” discriminates against person “B” where, “on the grounds of sexual orientation, A treats B less favourably than he treats or would treat other persons”. Discrimination on grounds of religious belief or political opinion in relation to the provision of goods, facilities and services, which is stated under the Fair Employment (Northern Ireland) Order 1998 (FETO).
Facts of the case
In this case, Mr Lee (a gay man) placed an order for the cake at Ashers Bakery in Belfast. The cake was meant for a private event ran by an LGBTQ organisation called QueerSpace in Northern Ireland. Due to the owners of Ashers Bakery’s Christian belief that marriage should only be between a man and a woman, they were against same-sex marriage. They cancelled the order of the Cake and gave Mr Lee a refund. As a result, Mr Lee brought proceedings for direct discrimination on the grounds of religious belief or political opinion under FETO and for direct discrimination on the grounds of sexual orientation.
County Court and Court Appeal decisions
The County Court found that the defendants cancelled the order because of their disapproval to same-sex marriage which arose from their religious beliefs, not because of the Mr Lee’s sexual orientation. Nevertheless, as support for gay marriage was interrelated to sexual orientation, Mr Lee’s claim succeeded. However, the Norther Ireland Court of Appeal stated that this was “clearly wrong” because “many heterosexual people support gay marriage and some gay people oppose gay marriage”. Nonetheless, the Court of Appeal also found that this was a case an associative discrimination case, as there was an “association with the gay and bisexual community and the protected personal characteristic was the sexual orientation of that community”, as a result Mr Lee’s case was still successful even after appeal.
After the Court of Appeal announced their judgment, the Attorney General for Northern Ireland questioned the validity of the of the SORs and the FETO under paragraph 34 of Schedule 10 to the Northern Ireland Act 1998. However, the Court of Appeal refused to make a reference as the proceedings had come to an end. Following this, the Attorney General and Ashers Bakery brought their case to the Supreme Court.
Supreme Court decision
The Supreme Court decided that the bakery had not discriminated directly on the grounds of sexual orientation nor had it discriminated directly on the grounds of religious belief or political opinion. It was also held that the Attorney General had the power to demand a reference to the Supreme Court, therefore the Court of Appeal had been wrong in refusing to do so.
The Supreme Court argued that the bakery did not refuse to fulfil the order because of Mr Lee’s sexual orientation, as they would have supplied him with a cake if it did not have the message ‘support gay marriage’. They would have also refused to supply a cake with the message if it was requested by a heterosexual customer. The bakery objected to the message and not Mr Lee himself.