The 'Gay Cake' case

21 November 2018

Is it discriminatory for a devout Christian baker to refuse to bake a cake bearing the message 'Support Gay Marriage'?

No, the Supreme Court has said in Lee v Ashers Bakery. Mr Lee is a gay rights activist in Northern Ireland. He ordered a cake saying 'Support Gay Marriage'. The bakery owners hold the Christian belief that marriage should take place only between a man and a woman. They refused to bake the cake. Mr Lee brought claims for discrimination on the grounds of sexual orientation and political belief (the latter based on his belief in gay marriage - Northern Ireland prohibits discrimination based on political opinion which the rest of the UK does not).

The Supreme Court said that refusing the order was not directly discriminatory on the grounds of sexual orientation. The bakery had not refused the order because Mr Lee was gay. They had served him many times before. The issue was the message and the bakery's religious objection to gay marriage. The bakery would have refused the same order had it been requested by someone heterosexual. The less favourable treatment related to the message, not the man.

The bakery owners' human rights under articles 9 and 10 the European Convention on Human Rights (freedom of religion and belief and freedom of expression) meant that they should not have to express a message with which they disagreed unless there was justification for doing so (i.e. it was necessary in a democratic society in pursuit of a legitimate aim).

Although this is not an employment case, the same legal principles apply to employers as to service providers. It is likely that people holding strong political or religious views will be bolstered by this case. Employees may be more likely to assert those views in the workplace.

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