NI: Christian-run bakery ‘unlawfully discriminated’ against gay man for refusing to make ‘gay cake’
The Christian directors of a bakery “unlawfully discriminated” against a gay man in refusing to accept his order for a “Bert and Ernie” cake bearing a caption supporting same-sex marriage.
A judge at Belfast County Court held that the Ashers Bakery, run by husband and wife Colin McArthur and Karen McArthur, by discriminated against Gareth Lee on the grounds of sexual orientation.
The family-run business turned down the request for a cake with an image of the Sesame Street puppets and the words “Support Gay Marriage”.
District Judge Isobel Brownlie said: “The defendants have unlawfully discriminated against the plaintiff on grounds of sexual discrimination. This is direct discrimination for which there is no justification.”
The court heard that the plaintiff Gareth Lee – a gay man associated with an organisation called “QueerSpace”, which seeks to increase visibility of the Lesbian, Gay and Bisexual and Transgender community in a positive manner – decided to buy a cake for an event and placed an order with Ashers Bakery.
He was planning to attend a private event on 17 May 2014 to mark the end of the Northern Ireland anti-homophobia week and the fact that the NI Assembly vote on the introduction of legislation enabling same sex marriage had been rejected by a narrower margin than on previous occasions, marking political momentum.
The plaintiff provided the bakery with an A4 sheet with a picture of Bert and Ernie, the logo of QueerSpace and the caption “Support Gay Marriage”.
But three days later he received a phone call from Ashers indicating that the order could not be fulfilled as they were a “Christian business” and, in hindsight, should not have taken the order.
The bakery apologised and arranged for a refund, but plaintiff challenged the decision claiming that he had been discriminated against contrary to the provisions of the Equality Act (Sexual Orientation) Regulations (NI) 2006 and/or the Fair Employment and Treatment (NI) Order 1988.
The issues for the court to consider were whether there had been any direct or indirect discrimination on the grounds of sexual orientation, political opinion or religious belief and if so, whether the relevant provisions of the 2006 Regulations or the 1998 Order should be read down so as to take account of the defendants’ protected rights to manifest their religious belief in accordance with Article 9 of the European Convention on Human Rights or their freedom of non-expression under Article 10 ECHR.
The defendants told the court that they opposed the introduction of same-sex marriage and described homosexual relations as “sinful”.
The plaintiff described his reaction as “shocked and bewildered” and felt that the cancellation had been because of his sexual orientation and his support for same-sex marriage.
Judge Brownlie found, on the evidence, that the defendants did have the knowledge or perception that the plaintiff was gay and/or associated with others who are gay, and did not accept the defendants’ submissions that what the plaintiff wanted them to do would require them to promote and support gay marriage which is contrary to their deeply held religious beliefs.
“Much as I acknowledge fully their religious belief is that gay marriage is sinful, they are in a business supplying services to all, however constituted. The law requires them to do just that, subject to the graphic being lawful and not contrary to the terms and conditions of the company,” she said.
The judge concluded that the defendants had unlawfully discriminated against the plaintiff on the ground of sexual orientation contrary to the 2006 Regulations, and contrary to the 1998 Order.
In a written judgement, Judge Brownlie said: “My finding is that the defendants cancelled this order as they oppose same sex marriage for the reason that they regard it as sinful and contrary to the genuinely held religious beliefs.
“The defendants are not a religious organisation; they are conducting a business for profit and, notwithstanding their genuine religious beliefs, there are no exceptions available under the 2006 Regulations which apply to this case and the legislature, after appropriate consultation and consideration, has determined what the law should be.”
The judge added that the defendants had disagreed with the religious and political belief held by the plaintiff with regard to a change in the law to permit gay marriage and, accordingly, by their refusal to provide the services sought, treated the plaintiff less favourably “contrary to the law”.
The judge also noted that case law of the European Court of Human Rights had long recognised that a limited company, given the fact that it concerns a profit-making corporate body, cannot invoke Article 9 rights.
The defendants also claimed that they had a right under Article 10 of the ECHR not to be compelled to express or commit them to a viewpoint, but Judge Brownlie held that what the defendants were asked to do did not require them to support, promote or endorse any viewpoint.
The parties agreed that £500 of damages should be awarded to the plaitiff.