Cakes, Religion and Sexual Orientation
By Merrill April and Emily Parker, Memery Crystal LLP
What happened when the Northern Ireland Court of Appeal (NI CoA) considered the conflict between religious beliefs and same-sex marriage in the context of a ‘Bert and Ernie’ cake? The decision in Lee v Ashers Baking Co Ltd  NICty 2, handed down on 24 October 2016, concerns the treatment of conflicting protected characteristics – sexual orientation and religious beliefs.
Ashers Bakery, the defendant, run by Colin and Karen McArthur, provides a customised cake making service. Gareth Lee (Mr Lee), the claimant, is a gay man who has an association with ‘QueerSpace’ (a voluntary organisation for the LGBT community in Northern Ireland).
To celebrate the end of ‘Northern Ireland Anti-homophobic Week’, and the increasing support towards same-sex legislation, Mr Lee was hosting a private event for which he required a custommade cake. Having previously visited Ashers Bakery where he discussed his general requirements for a cake (albeit not mentioning the LGBT-related aspects), Mr Lee placed an order for a cake displaying a picture of ‘Bert and Ernie’, the logo for QueerSpace, with the caption “Support Gay Marriage”.
Ashers Bakery initially accepted the order, but Colin and Karen McArthur subsequently cancelled it upon the basis that the bakery was a “Christian business” and it should not have been accepted in the first place.
The NI CoA was asked to consider whether the religious beliefs held by those running Ashers Bakery should be prioritised over the legislation concerning discrimination on the basis of sexual orientation, in the context of the supply and sale of goods and services.
In coming to its decision, the NI CoA acknowledged that Ashers Bakery would have supplied a different cake to the same person, or refused to supply the same cake to a heterosexual person. However, it noted that the reason that the order was rejected was because Colin and Karen McArthur opposed same-sex marriage because “they regarded it as sinful and contrary to their religious beliefs”.
The NI CoA held that, as the legislation prohibits the provision of services which are discretionary on the grounds of sexual orientation, Ashers Bakery and the McArthurs were caught by this. The judgment outlined that whilst the bakery could choose not to supply cakes including religious or political messages in general, what they cannot do is “provide a service that only reflects their own political or religious belief in relation to sexual orientation”.
This case deals with discrimination legislation in relation to the supply of goods and services beyond the traditional workplace scenarios we are used to encountering. Employers should be aware of such legislation, when considering the reasons for which both their business and individual employees may decide to refuse to provide any goods and/or services. Fortunately in this scenario, Mr Lee managed to source his cake elsewhere; this decision is likely to be the added icing to his prior LGBT celebrations.
Merrill AprilMemery Crystal LLP, London, United Kingdom
T: +44 20 7242 59 05
Merrill is Head of Employment at Memery Crystal. She advises on contractual and other employment issues that arise throughout the employment relationship and on transactions, especially in relation to TUPE. She frequently works with owner managers setting up their employment and HR structures, drafting contracts and policies and working with HR and in-house lawyers in delivering the HR/employment law service to their business. She also represents in the High Court in relation to contractual disputes and business protection.
Published: January 2017 l Photo: Chuck - Fotolia.com