LEE V ASHERS BAKING COMPANY, THE RECENT JUDGEMENT OF THE UK SUPREME COURT

By Cecilia Palomo  

  The Universal Declaration of Human Rights in its first two articles establishes that all human beings are born free and equal in dignity and rights, and since they are endowed with reason and conscience, have the responsibility to act towards one another in a spirit of brotherhood. In this sense, rights must be granted equally to everyone without any kind of distinction such as race, colour, sex, language, religion, political or other opinion, national or social origin, property, birth or other status.

The recognition of the human right to be treated as equals, have acquire a special dimension in the defence of the LGBTQ movement, specially through allegations of non-discrimination, and the positive achievements are undeniable. However, it is also important to look at the different dimensions of the common right to non-discrimination, which goes beyond and protects other categories, such as religious freedom. The UK Supreme Court delivered a judgement on October 10th regarding this right in Lee (Respondent) vs. Ashers Baking Company Ltd and others (Appellants) (Northern Ireland).[1]   1. The facts:

a) Appellants (A): Mr and Mrs McArthur have run a bakery business since 1992. Their son Daniel is now the general manager. They have six shops, a staff of about 65 people, and they also offer their products on-line throughout the UK and the Republic of Ireland. Since 2004, the business has been run through Ashers Baking Company Ltd. The name was derived from Genesis 49:20: “Bread from Asher shall be rich and he shall yield royal dainties”. The McArthurs are Christians, who hold the religious beliefs that: The only form of full sexual expression and marriage which is consistent with Biblical teaching (and therefore acceptable to God) is that between a man and a woman.

They have sought to run Ashers in accordance with their beliefs, but this, and the biblical connection of the name, has not been advertised or otherwise made known to the public.

b) Respondent (R): Mr Lee is a gay man who volunteers with QueerSpace, an organization for the LGBT community in Belfast. QueerSpace is not a campaigning organization, but it supports the campaign in Northern Ireland to enable same sex couples to get married. A motion supporting this was narrowly rejected by the Northern Ireland Assembly on 29 April 2014. Mr Lee was invited to attend a private event organised by QueerSpace at Bangor Castle on Friday 17 May 2014 to mark the end of Northern Ireland anti-homophobia week and the political momentum towards same-sex marriage. He decided to take a cake to the party.

c) Previous customer relationship between A and R: Lee had previously bought cakes from Ashers shop in Royal Avenue, Belfast, but he was not personally known to the staff or to Mr and Mrs McArthur. He did not know anything about the McArthurs’ beliefs about marriage and neither they nor their staff knew of his sexual orientation. Ashers offered a “Build-a-Cake” service to customers. Customers could request particular images or inscriptions to be iced onto a cake. There was a leaflet advertising this service, with various examples of what could be done, but no religious or political restrictions were mentioned.

d) The cake supporting gay marriage: On 8 or 9 May 2014, Mr Lee went into the shop and placed an order for a cake to be iced with his design, a coloured picture of cartoon-like characters “Bert and Ernie”, the QueerSpace logo, and the headline “Support Gay Marriage”. Mrs McArthur took the order but raised no objection at the time because she wished to consider how to explain her objection and to spare Mr Lee any embarrassment. Mr Lee paid for the cake. Over the following weekend, the McArthurs decided that they could not in conscience produce a cake with that slogan and so should not fulfil the order. On Monday 12 May 2014, Mrs McArthur telephoned Mr Lee and explained that his order could not be fulfilled because they were a Christian business and could not print the slogan requested. She apologised to Mr Lee and he was later given a full refund and the image was returned to him.

e) District decision found discrimination: The district judge found that, when they refused to carry out the order, the defendants did perceive that Mr Lee was gay and/or associated with others who were gay; but one of the questions raised in the case stated was whether she was correct as a matter of law to make that finding. The Court of Appeal found it unnecessary to answer that question as the District Judge had made no finding that the order was cancelled because Mr Lee was perceived as being gay. On 19 May 2015, the Presiding District Judge held that refusing to complete the order was direct discrimination on all three grounds […] she made a declaration to that effect and awarded Mr Lee damages in the agreed sum of £500.

f) The Court of Appels also found discrimination and dismissed A claims: The defendants appealed by way of case stated to the Court of Appeal. On 24 October 2016, the Court of Appeal handed down judgment dismissing the appeal. It held that this was a case of associative direct discrimination on grounds of sexual orientation.

 

2. Two main claims of the case:

a) Sexual orientation

a.1) The objection was to the message, not to the messenger: As the Court of Appeal pointed out, the District Judge did not take issue with the submission that the bakery would have supplied Mr Lee with a cake without the message “support gay marriage” and that they would also have refused to supply a cake with the message requested to a hetero-sexual customer, therefore the objection was to the message, not the messenger. […] The reason for treating Mr Lee less favourably than other would-be customers was not his sexual orientation but the message he wanted to be iced on the cake. […] By definition, direct discrimination is treating people differently, something that didn’t occur.

a.2) Support for gay marriage is not indissociable of sexual orientation: The District Judge held that support for same sex marriage was indissociable from sexual orientation. This is, however, to misunderstand the role that “indissociability” plays in direct discrimination. It comes into play when the express or overt criterion used as the reason for less favourable treatment is not the protected characteristic itself but some proxy for it. As an example in Preddy vs. Bull [2013] UKSC 73, letting double-bedded rooms to married couples but not to civil partners was directly discriminatory because marriage was (at that time) indissociable from hetero-sexual orientation. There is no need to consider that question in this case, as the criterion was quite clear. But even if there was, there is no such identity between the criterion and sexual orientation of the customer. People of all sexual orientations, gay, straight or bi-sexual, can and do support gay marriage. Support for gay marriage is not a proxy for any particular sexual orientation.

a.3) The claim of associative discrimination has limits: The Court of Appeal held that “this was a case of association with the gay and bisexual community and the protected personal characteristic was the sexual orientation of that community”. This suggests that the reason for refusing to supply the cake was that Mr Lee was likely to associate with the gay community of which the McArthurs disapproved. But there was no evidence that the bakery had discriminated on that or any other prohibited ground in the past. The evidence was that they both employed and served gay people and treated them in a non-discriminatory way. Nor was there any finding that the reason for refusing to supply the cake was that Mr Lee was thought to associate with gay people. The reason was their religious objection to gay marriage. […] This was a case of associative discrimination or it was nothing. It would be unwise in the context of this particular case to attempt to define the closeness of the association which justifies such a finding. Not only did the District Judge not make such a finding in this case, the association would not have been close enough for her to do so. In a nutshell, the objection was to the message and not to any particular person or persons.

a.4) Not finding a violation of right to non-discrimination for sexual orientation in this case, doesn’t mean diminish the real problem of discrimination against gay people: In reaching the conclusion that there was no discrimination on grounds of sexual orientation in this case, I do not seek to minimise or disparage the very real problem of discrimination against gay people. Nor do I ignore the very full and careful consideration which was given to the development of the law in this area […] Everyone, as article 1 of the Universal Declaration of Human Rights put it 70 years ago is “born free and equal in dignity and rights”. Experience has shown that the providers of employment, education, accommodation, goods, facilities and services do not always treat people with equal dignity and respect, especially if they have certain personal characteristics which are now protected by the law. It is deeply humiliating, and an affront to human dignity, to deny someone a service because of that person’s race, gender, disability, sexual orientation or any of the other protected personal characteristics. But that is not what happened in this case and it does the project of equal treatment no favours to seek to extend it beyond its proper scope.

b) Political beliefs

The purpose of discrimination law is to protect a person (or a person or persons with whom he is associated) who has a protected characteristic from being treated less favourably because of that characteristic. […] In this case, there was no less favourable treatment because anyone else would have been treated in the same way. The objection was not to Mr Lee because he, or anyone with whom he associated, held a political opinion supporting gay marriage. The objection was to being required to promote the message on the cake. The less favourable treatment was afforded to the message not to the man. It was not as if he were being refused a job, or accommodation, or baked goods in general, because of his political opinion, as for example, was alleged to have happened in Ryder v Northern Ireland Policing Board. The evidence was that they were quite prepared to serve him in other ways. The situation is not comparable to people being refused jobs, accommodation or business simply because of their religious faith.  

3. Legal reasoning of the UK Supreme Court:

a) The interaction between freedom of religion and freedom of expression in the European Convention of Human Rights: The right to not express an opinion.

            Article 9(1) of the Convention provides that “Everyone has the right to freedom of thought, conscience and religion; this right includes freedom to change his religion or belief and freedom, either alone or in community with others and in public or private, to manifest his religion or belief, in worship, teaching, practice and observance”. Article 9(2) permits limitations on the freedom to manifest one’s religion or beliefs but not on the freedom to hold them. In its first case dealing with article 9, Kokkinakis v Greece (1993) 17 EHRR 397, para 31, the European Court of Human Rights expressed the importance of the right in a passage which has been much-cited since:

“As enshrined in article 9, freedom of thought, conscience and religion is one of the foundations of a ‘democratic society’ within the meaning of the Convention. It is, in its religious dimension, one of the most vital elements that go to make up the identity of believers and their conception of life, but it is also a precious asset for atheists, agnostics, sceptics and the unconcerned. The pluralism indissociable from a democratic society, which has been dearly won over the centuries, depends on it.”

One is free both to believe and not to believe.

            On the other hand Article 10(1) provides that “Everyone has the right to freedom of expression. This right shall include freedom to hold opinions and to receive and impart information and ideas without interference by public authority and regardless of frontiers.” The right to freedom of expression does not in terms include the right not to express an opinion but it has long been held that it does. A recent example in this jurisdiction is RT (Zimbabwe) v Secretary of State for the Home Department [2012] UKSC 38; [2013] 1 AC 152. The issue was whether asylum seekers should be sent back to Zimbabwe where they would face a real risk of persecution if they refused to demonstrate positive support for the then regime in that country. Citing, among other cases, both Kokkinakis and Buscarini, Lord Dyson held that the principle applied as much to political opinions as it did to religious belief: “Nobody should be forced to have or express a political opinion in which he does not believe”.

b) With the cake order, the defendants were being required to promote and support a campaign for a change in the law to enable same sex marriage.

            This was argued by the A, but the District Judge did not accept the claim, neither the Court of Appeal, who stated that: “the fact that a baker provides a cake for a particular team or portrays witches on a Halloween cake does not indicate any support for either”. These are, in fact, two separate matters: being required to promote a campaign and being associated with it.

Promote: The bakery was required, on pain of liability in damages, to supply a product which actively promoted the cause, a cause in which many believe, but a cause in which the owners most definitely and sincerely did not.

Being associated: There is no requirement that the person who is compelled to speak can only complain if he is thought by others to support the message. Mrs McArthur may have been worried that others would see the Ashers logo on the cake box and think that they supported the campaign. But that is by the way: what matters is that by being required to produce the cake they were being required to express a message with which they deeply disagreed.

Rights are not absolute: Articles 9 and 10 are, of course, qualified rights which may be limited or restricted in accordance with the law and insofar as this is necessary in a democratic society in pursuit of a legitimate aim. It is, of course, the case that businesses offering services to the public are not entitled to discriminate on certain grounds. The bakery could not refuse to provide a cake – or any other of their products – to Mr Lee because he was a gay man or because he supported gay marriage. But that important fact does not amount to a justification for something completely different – obliging them to supply a cake iced with a message with which they profoundly disagreed. In my view they would be entitled to refuse to do that whatever the message conveyed by the icing on the cake – support for living in sin, support for a particular political party, support for a particular religious denomination. The fact that this particular message had to do with sexual orientation is irrelevant.

c) Masterpiece Cakeshop Ltd v Colorado Civil Rights Commission, US Supreme Court judgement of June 4th 2018: The distinction between objection to the message on the cake, and objection to the customer.

            While the judgement was being prepared, the Supreme Court of the United States handed a judgement with different facts, but relevant reasoning for this case: A Christian baker refused to create a wedding cake for a gay couple because of his opposition to same sex marriage. There is nothing in the reported facts to suggest that the couple wanted a particular message or decoration on their cake. The Colorado Civil Rights Commission, upheld by the Colorado courts, held that the baker had violated the Colorado law prohibiting businesses which offered sales or services to the public from discrimination based on sexual orientation. The baker complained that this violated his First Amendment rights to freedom of speech and the free exercise of his religion.

The majority recognised that businesses could not generally refuse to supply products and services for gay weddings; but they acknowledged that the baker saw creating a wedding cake as an expressive statement involving his First Amendment rights; and contrasted the treatment that he had received, which they perceived as hostile, from the favourable treatment given to three bakers who had refused to produce cakes with messages demeaning gay persons and gay marriages.

Justices Ginsburg and Sotomayor, in dissent, drew a clear distinction between an objection to the message on the cake and an objection to the customer who wanted the cake. The other bakery cases had been clear examples of an objection to the message rather than an objection to the customer. In their view the objection in this case was to the customer and therefore a violation. Justices Kagan and Breyer, who voted with the majority on the lack of neutrality point, also accepted that the Commission could have based its reasoning on that distinction – the other bakers would have refused to make cakes with the demeaning messages for anyone, whereas this baker had refused to make this cake because it was a gay couple who wanted it. Justices Thomas and Alito, on the other hand, considered that to make a cake for a gay wedding was expressive in itself and thus compelling it required strict scrutiny. Justice Gorsuch would also not have distinguished between a cake with words and a cake without.

The important message from the Masterpiece Bakery case is that there is a clear distinction between refusing to produce a cake conveying a particular message, for any customer who wants such a cake, and refusing to produce a cake for the particular customer who wants it because of that customer’s characteristics. One can debate which side of the line particular factual scenarios fall. But in our case there can be no doubt. The bakery would have refused to supply this particular cake to anyone, whatever their personal characteristics. So there was no discrimination on grounds of sexual orientation.

The final reflection would be if the discussion about polemic cakes is as important as it seems to be. What underlies is the right to non-discrimination, which has special categories of analysis such as sex (sexual orientation included) and religion. The interaction between these two are always controversial, believers celebrate the decision without knowing very much about the legal reasoning, or how to learn more about discrimination against gay people; while LGBT activist are disappointed and sustain that the judgement leaves a lack of clarity in equality law. The point is that this decision is not about advancing or going back in guarantying rights, but to notice something more important than that: our identical dignity. What makes this judgement relevant, is that it helps everyone to understand that we have to learn to live together in diversity respecting others, no matter if we agree with them or not, and that disagreement doesn’t legitimize anyone to mistreat people. It also takes the discussion out of the emotional plane, where every way of thinking or expressing in a different form constitutes a threat to the “satus quo” of society. Today it is important to stop seeing this as a win or lose game between “them” and “us”, in order to focus with reason and conscience on what really matters: our responsibility to act towards one another in a spirit of brotherhood.    

[1] All the references to the judgement presented here are a resume of the official decision [2018] UKSC 49, Lee vs. Ashers Baking Company Ltd and others, October 10th 2018. Available here: https://www.supremecourt.uk/cases/docs/uksc-2017-0020-judgment.pdf

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