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Gay marriage cake case has lessons for all employers

The Northern Ireland (NI) Court of Appeal recently had to decide whether a bakery refusing to provide a cake with the message ‘support gay marriage’ was discrimination on grounds of sexual orientation and political opinion.

So far, calls from some members of the NI assembly for the introduction of legislation to allow same-sex marriage (already lawful in the rest of the UK) have not succeeded. This case, Lee v Ashers Baking Company, concerned a gay man associated with an LGBT community organisation in Northern Ireland called QueerSpace. Lee wanted a cake to mark the end of a week of anti-homophobic campaigning which involved the continuing political drive towards same-sex marriage legislation. He placed an order for a cake with Ashers bakery, asking for the cake to have a picture of 'Bert and Ernie' (QueerSpace’s logo) on it, accompanied by lettering saying ‘Support gay marriage’.

The bakery’s directors were Christians who opposed the introduction of same-sex marriage as they believed it to be sinful. They discussed the order with their family, and then rang Lee to tell him they could not fulfil it as Ashers was a "Christian business". Lee lodged a discrimination claim.

County Court

The bakery directors accepted that they had cancelled the order because of their religious beliefs. The County Court held that same sex marriage is inextricably associated with sexual orientation and that, within the NI political landscape, support for same-sex marriage is inseparable from political opinion supporting a change in the law. Therefore, the bakery’s refusal to meet the order amounted to direct discrimination against Lee on grounds of sexual orientation and political opinion in the provision of goods or services. The bakery appealed.

NI Court of Appeal

The NI CA rejected the appeal. The picture and the message on the cake could only relate to gay or bisexual people. The bakery would not have objected to a cake carrying the message ‘Support heterosexual marriage’ or even ‘Support marriage’. The business cancelled the order because the family running it would not provide a cake with a message that backed the right of those of a particular sexual orientation to marry, and because the family running it disagreed with Lee’s political opinion that the law should be changed to permit gay marriage. Accordingly, this was direct discrimination on the grounds of sexual orientation and political opinion.

The Court also rejected the bakery’s argument that Article 9 of the European Convention on Human Rights, the right to freedom of thought, conscience and religion, and Article 10, the right to freedom of expression, meant that the family’s religious rights had to be accommodated. Neither right could be interpreted as allowing direct discrimination on the grounds of religious belief – a proportionate balance had to be struck.

Comment

This case relates to the law in NI, although similar provisions outlawing discrimination in the provision of goods and services are set out in the Equality Act 2010, and while discrimination specifically on grounds of political opinion is not unlawful under the Act, a belief in a political philosophy or doctrine may qualify for protection against discrimination.

Although this judgment relates to the provision of goods and services, it has a read across to workplace situations. The ruling reinforces the principle established in case law that one right does not take precedence over another – an employee’s right to hold a religious belief, for example, does not mean that he or she can apply that belief, or express it, in a way that discriminates against others.

For example, in Ladele v London Borough of Islington, a local authority was entitled to require a Christian registrar to carry out civil partnership ceremonies even though same-sex relationships were against her religious beliefs. Similarly, the employer in McFarlane v Relate Avon did not discriminate when it dismissed a Christian relationship counsellor who did not feel he could provide counselling to same-sex couples as it conflicted with his religious beliefs.

Employers have a difficult task trying to achieve the right balance between competing rights – it may seem unjust to require an employee to do something that is totally incompatible with his or her genuine religious beliefs. Perhaps the best way to explain it to employees is to say that the rights being protected because of religious belief or sexual orientation are equal – one does not take priority over the other – and the law requires an employer to intervene if employees exercise their beliefs in a discriminatory way.

Added: 01-11-2016
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