"Gay cake" discrimination ruling upheld by N Ireland appeal court

A baking firm's refusal to accept an order for a cake with a slogan supporting gay marriage was discriminatory, the Northern Ireland Court of Appeal ruled today.

Three judges upheld a decision by the district court that the Christian owners of Ashers Baking Company had unlawfully discriminated on grounds of sexual orientation against gay rights activist Gareth Lee, who had asked the firm to make a cake that said "Support Gay Marriage".  

The owners, the McArthur family, argued that they were entitled to refuse the order in accordance with their religious belief that marriage should only be between a man and a woman, as article 9 of the European Convention on Human Rights protected the right to freedom of thought, conscience and religion and provided a qualified right to manifestation of those beliefs. Article 10 on freedom of speech was also engaged as thi was a case of "forced speech". They further argued that direct discrimination in relation to a protected personal characteristic could not be established by a difference in treatment in respect of a message on a cake.

However the court ruled that the benefit from the message or slogan on the cake could only accrue to gay or bisexual people. "We accept that it was the use of the word “Gay” in the context of the message which prevented the order from being fulfilled", the judges said. "The reason that the order was cancelled was that the appellants would not provide a cake with a message supporting a right to marry for those of a particular sexual orientation. This was a case of association with the gay and bisexual community and the protected personal characteristic was the sexual orientation of that community. Accordingly this was direct discrimination."

On the article 9 point, the court followed the UK Supreme Court ruling in Bull v Hall (2013), where the owners of a private hotel were held not entitled on religious grounds to refuse a double room to a gay couple. "As in that case, it is clear that the limitation on the article 9 rights of the appellants is in accordance with law and pursues a legitimate aim, being the rights of the respondent under the 2006 Regulations [made under the Equality Act]", the judges said.

The proportionality assessment favoured the respondents: "The structure of the Regulations, the need to protect against arbitrary discrimination, the ability to alter the offer and the lack of any association of the appellants with the message all point that way." No separate considerations arose under article 10.

The court added: "In the present case the appellants might elect not to provide a service that involves any religious or political message. What they may not do is provide a service that only reflects their own political or religious message in relation to sexual orientation."

Click here to view a summary of the judgment. The full judgment is awaited.