When the Supreme Court handed down their recent decision in Lee v Ashers Baking Co Ltd, there was an outcry from many. How could what happened not be discrimination?
The Appeal
Mr Lee had approached Ashers Bakery intending to use its customised ‘Build-a-Cake’ service. He wanted a cake decorated with an image of the cartoon characters Bert and Ernie, and the message ‘Support Gay Marriage’. Ashers Bakery is owned by Mr and Mrs McArthur. They are Christians who are strongly opposed to gay marriage.
Mrs McArthur took the order and did not raise any objections at the time, wishing to take time to consider how best to put them forward and wishing not to cause any embarrassment to Mr Lee. Some time later the McArthurs informed Mr Lee that they could not fulfil his order and refunded him. He obtained a similar cake from a different supplier.
The main point of interest arising from the decision is the distinction between objecting to the inscription, and objecting or discriminating against the person himself or herself.
The Message not the Messenger
The crux of the Supreme Court’s judgment lies in the distinction between discrimination against a person by refusing to supply them with a cake because of their sexual orientation or political beliefs, and the refusal to provide a cake with the message ‘Support Gay Marriage’ iced upon it. As summarised by Lady Hale, “The objection was to the message, not the messenger.” [14]
There was no finding made that the owners of the bakery would have provided the ordered cake to a heterosexual person. It was the inscription on the cake, and not the person, to which they objected. Mr Lee had in fact been to the bakery and purchased cakes on previous occasions. The Supreme Court therefore concluded that there was no discrimination was not against Mr Lee on grounds of sexual orientation.
Whilst this argument appears to make legal sense, it is difficult to see how far this could be taken. What if, for example, all of the bakeries had refused to provide a cake with the required message?
The comparison made by Lady Hale to a Christian printing business makes the complications more stark – if a person cannot get their message printed, because it is contains atheist beliefs and all of the printing businesses in the reasonable vicinity are run by Christians, how does one balance the convention right to freedom of expression of both parties? Simply looking at the matter through the prism of discrimination against a person on the grounds of a protected characteristic raises arguably more questions than it answers.
Conclusion
Once the media attention and furore around this case calms down, it will be discrimination lawyers who will be left to grapple with the boundaries and distinctions drawn in this case, and how best to use them to protect the rights of both claimants and defendants in such cases.