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Supreme Court clarifies freedom of religious and political expression

  • United Kingdom
  • Employment law

10-10-2018

The Supreme Court has today overturned a ruling from the Northern Ireland Court of Appeal that a bakery unlawfully discriminated against a customer on grounds of sexual orientation and religious and political belief when it refused, on religious grounds, to fulfil an order for a cake bearing the slogan ‘Support Gay Marriage’.

Background

The case came about after Mr Lee placed an order with Northern Ireland based Ashers Bakery for a cake decorated with the words ‘Support Gay Marriage’. There had been political debate in Northern Ireland regarding the introduction of legislation enabling same-sex marriage and Mr Lee wanted the cake for an event to mark the political momentum towards a change in the law and the end of 'Northern Ireland Anti-homophobic Week'. The order was initially accepted but, after reflection, the directors of the bakery - a family-run business – cancelled the order because of their religious beliefs as Christians who were opposed to a change in the law regarding gay marriage.

Mr Lee brought a discrimination claim against the Appellants, which was upheld by both the County Court and Northern Ireland Court of Appeal (NICA), which concluded that the cancellation of the order was direct discrimination on the ground of sexual orientation and on the ground of religious and political belief (there being specific protection against political belief discrimination in Northern Ireland).

Conclusions of NICA

In deciding that there had been sexual orientation discrimination, the NICA accepted that the bakery did not refuse the order because of Mr Lee’s sexual orientation (although he is gay) but because the owners opposed same sex marriage. The Bakery argued there was no direct discrimination and that, whilst its refusal to put the requested message in support of same sex marriage on a cake had a connection with sexual orientation, it did not involve a difference in treatment of people of differing sexual orientation. NICA too acknowledged the bakery would have refused to supply a cake bearing that particular message to anyone, regardless of their sexual orientation. In contrast, Mr Lee drew a direct link between the Bakery’s refusal and “a class of persons which was uniquely of gay sexual orientation that wanted to have a civilly recognised union”. The Court dismissed the Bakery’s concerns about being seen to support the message itself, citing printers as an example of service providers who frequently produce election posters without being assumed to endorse the messaging.

In conclusion, NICA found that the refusal to decorate the cake by a commercial enterprise was a form of ‘associative’ discrimination because ‘the benefit from the message or slogan on the cake could only accrue to gay or bisexual people’ and this was therefore a case of discrimination on the ground of sexual orientation ie the sexual orientation of those who would benefit from the cause that the message was designed to promote.

Today’s Supreme Court Decision

The Supreme Court has now overturned the finding that the refusal to supply the cake was direct sexual orientation discrimination. It was not direct discrimination against Mr Lee because the Bakery’s objection was “to the message not the messenger”. They did not deny him the cake because of his sexual orientation and all people would have been treated the same, regardless of their sexual orientation. It also rejected the NICA’s assertion that only gay or bisexual people could benefit from a law which permitted same-sex marriage. In its view, the message of support for same sex marriage was not exclusively of benefit to the gay community but also to any members of society who recognise the positive effects same-sex marriage can bring. As a result, there was no discrimination on the ground of sexual orientation whether direct or associative in this case.

The Supreme Court also went some way to clarify the law on so-called ‘associative discrimination’ although it stopped well short of defining when association will arise. For some time it has been recognised that a service user or worker can claim direct discrimination not only when treated less favourably because of their own protected characteristics, but also if treated less favourably because of someone else’s protected characteristic. The Supreme Court has today confirmed that it is not enough in order to establish direct discrimination simply to show that less favourable treatment “has something to do with the sexual orientation of some people”; it must be a closer connection than that. Where that line is drawn, continues to be largely undefined but one can assume must be much more closely linked to an actual or presumed protected characteristic of a particular person or class of persons.

As for political opinion or religious discrimination, the Supreme Court similarly overturned the earlier court decisions in Mr Lee’s favour. Having established this was not a case where the Bakery was refusing Mr Lee’s request because he was gay, whether the Bakery was lawful (under Northern Ireland’s legislation) in turning down his custom on the grounds of his political opinions required a review of the human rights position –specifically, the impact of Articles 9 (freedom to hold religious beliefs) and 10 (freedom of expression) of the European Convention on Human Rights. They include the right not to be obliged to manifest beliefs one does not hold. In the absence of any justification (which the Court noted was absent in this case), it decided that the law could not be given effect to compel the Bakery to supply a cake iced with a message with which they profoundly disagreed.

Comment

The facts in this case engaged the complex issue of the manner in which conflicts between the LGBT community and the faith community can be properly resolved. At its most literal interpretation, the case might be seen to support those who choose to act in a certain way as a result of profoundly held religious or political views, providing they are not acting discriminatorily; for example, service providers who choose to decline commercial contracts because of profoundly held but conflicting religious or political views. However, this and similar controversial cases going through the courts in the US show that, in practice, deciding whether a service provider has acted in a discriminatory way remains far from straightforward, depending on the facts.

More broadly, one can see the risk of such complex issues being played-out in the workplace, leaving the employer in the unenviable position of trying to prevent, or deal with the aftermath of, disputes arising from conflicting views and priorities amongst the workforce.

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