A Recipe for Disaster? When Religious Rights and Equality Collide through the Prism of the Ashers Bakery Case

Date01 January 2016
AuthorEmma Fitzsimons
A Recipe for Disaster?
When Religious Rights and Equality Collide
through the Prism of the Ashers Bakery Case
e year 2015 may well go down in Irish history as a triumph for equality, with the
passing of the Marriage Equality Referendum1 and the subsequent adoption of the
Marriage Act 2015. Yet, a week before crowds celebrated deliriously outside Dublin
Castle, a parallel debate was taking place in Northern Irish legal discourse: can a
business have a religious conscience, and can those views prevail over equality?
In a case that attracted much controversy,2 Lee v Ashers Baking Co Ltd and
McArthur,3 the County Court of Northern Ireland held that a service user’s right
to be free from discrimination trumps the rights of the business and its operators
to conduct the business in accordance with their religious beliefs. In doing so,
the County Court upheld the relevant equalities legislation as enacted by the
legislature. Further, the County Court found that there was no need to interpret it
so as to nd a right akin to conscientious objection for business owners.
is comment provides a doctrinal analysis of the judicial decision and is structured
as follows. First, it sets out the background to the Ashers Bakery case, including
the politico–legal context and the facts of the case. Second, the legal framework
is set out, followed by the decision taken by the County Court in Northern
Ireland. ird, the result is analysed, in light of the Supreme Court decision in
Bull & Another v Hall & Another.4 Fourth, the aermath of the case is considered,
particularly with respect to the proposal to entrench a “conscience clause”,
permitting business owners to discriminate on the basis of their religious beliefs.
Finally, it concludes by nding that the Country Court was correct in upholding
1 Éanna Ó Caollaí and Mark Hilliard, “Ireland Becomes First Country to Approve Same-Sex
Marriage by Popular Vote” e Irish Times 24 May 2015
2 Henry McDonald, “Bert and Ernie Gay Marriage Cake Refused by Northern Ireland Bakery”
e Guardian 8 July 2014; BBC News, “Ashers Baking Company: ‘Gay Cake’ Raised in House
of Commons” BBC News 9 July 2014 http://www.bbc.co.uk/news/uk-northern-ireland-28227825
[accessed 8 November 2015]; Claire Williamson, “David Cameron in the Mix Over Bert and Ernie
Gay Cake Row” Belfast Telegraph 10 July 2014; Gerry Moriarty, “NI Bakers Face Civil Action for
Refusing Cake Gay Marriage Cake Order” e Irish Times 6 November 2014; BBC News, “Gay
Cake’ Row: Jimmy Spratt Says Case ‘Verging on Bullying” BBC News 19 November 2014 http://
www.bbc.co.uk/news/uk-northern-ireland-30121839 [accessed 8 November 2015]; Helen Nianias,
“Patrick Stewart Backs Bakery Aer ‘Gay Cake’ Court Battle” e Independent 7 June 2015
3 Lee v Ashers Baking Co Ltd and McArthur [2015] NICty 2 [hereinaer Lee]
4 Bull & Another v Hall & Another [2013] UKSC 73 [hereinaer Bull]
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the prohibition on discrimination, even in the commercial context, taking account
of the historic context of the homosexual experience on a teleological reading of
equality law.
Politico–Legal Context
Same-sex marriage is prohibited in Northern Ireland, although there is no
constitutional impediment to legislating for marriage, as there was in Ireland prior
to the enactment of the irty-fourth Amendment.5 For Northern Ireland, the law
on marriage is contained in the Marriage (Northern Ireland) Order 2003.
Same-sex marriage was recognised in England and Wales with the passage of
the Marriage (Same Sex) Couples Act 2013, and in Scotland with the Marriage
and Civil Partnership (Scotland) Act 2013. As a result of the changes in those
jurisdictions, Northern Ireland is an outlier: it is surrounded and neighboured
by territories, with which it shares strong social, historical and even jurisdictional
ties, but where the laws of marriage remain unique. To date, the Northern Ireland
Executive has not introduced any legislation to amend the Marriage (Northern
Ireland) Order 2003 so as to allow for same-sex marriage. However, there have
been ve private members motions, one every year between 2012 and 2015, but all
were voted against.6
eir defeat was made possible via a parliamentary mechanism particular to
Northern Ireland: the petition of concern. e petition of concern was introduced
by section 42 of the Northern Ireland Act 1998, to breed condence between
the two polarised communities, by allowing either the Nationalist or Unionist
bloc to invoke a petition to stop the progression of a bill which would have a
disproportionate impact on their respective communities. In this regard, the
petition of concern was created as a safety-valve to allow space for two entrenched
communities, who for historical reasons, had no trust or condence in the “other
side”. Yet, given the frequency of its invocation,7 and its application to social issues
like marriage, the petition of concern might now be regarded as akin to a simple
veto, deployed for partisan reasons.8
5 e irty-fourth Amendment to the Irish Constitution inserted the following new section 4
at Article 41 of the Constitution: “[m]arriage may be contracted in accordance with law by two
persons without distinction as to their sex.
6 Catherine Fairbairn, Heather Lyall and Jane Campbell, Marriage of Same Sex Couples Across the
UK: What’s the Same And What’s Dierent? (Research Paper 14/29 House of Commons Library,
2014), p. 14
7 Assembly and Executive Review Committee, Review of Petitions of Concern (Report NIA 166/11-
15, 26 March 2014) http://www.niassembly.gov.uk/globalassets/documents/reports/assem_exec_
review/10170.pdf [accessed 8 November 2015]
8 For a critical view on the petition of concern, see Alex Schwartz, “How Unfair is Cross-Community
Consent? Voting Power in the Northern Ireland Assembly” [2006] 61(4) NILQ 349
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