Refusal To Supply 'Support Gay Marriage' Cake Not Discriminatory

Author:Mr Kevin Langford, Rachel Barry and Niamh Fennelly
Profession:Arthur Cox

The UK Supreme Court has held that a Belfast bakery did not discriminate against a gay man when it refused to provide him with a cake bearing a message of support for same-sex marriage on the grounds of sexual orientation, religious belief and political opinion.

The Court held that the bakery's objection was the requirement to promote the message on the cake rather than an objection to the customer because of his sexual orientation.


In May 2014, Mr Lee placed an order with Ashers Bakery Company Limited for a cake to be iced with his design: a coloured picture of Sesame Street characters Bert and Ernie, the logo for an LGBT voluntary organisation and the headline "Support Gay Marriage".

Mrs McArthur, a director of Ashers Bakery together with her husband, initially accepted the order but subsequently telephoned Mr Lee and explained that his order could not be fulfilled because they were a Christian business and could not print the message requested. She apologised and gave him a full refund.

Mr Lee complained to the Equality Commission for Northern Ireland. The Commission supported him in bringing a claim for direct and indirect discrimination on the grounds of sexual orientation, religious belief and political opinion under the legislation prohibiting such discrimination in Northern Ireland.

Mr Lee succeeded in the District Court, where Judge Brownlie held that refusing to complete the order was direct discrimination on all three grounds. The McArthurs appealed to the Court of Appeal of Northern Ireland.

The Court of Appeal held this was a case of associative direct discrimination on the ground of sexual orientation, finding that the protected personal characteristic was the sexual orientation of the LGBT community. The McArthurs appealed to the UK Supreme Court.


Sexual Orientation

The Court rejected the District Court's finding that support for same sex marriage is indissociable from sexual orientation. The Court found that "indissociability" was not applicable in this case because people of all sexual orientations can and do support gay marriage. It held that support for gay marriage is not a proxy for any particular sexual orientation.

The Court accepted that in principle one person may be treated less favourably because of another person's sexual orientation. (This is the concept of associative discrimination, which exists under Irish equality law)...

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