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Is it discriminatory for a Christian baker to refuse to bake a cake containing a message in support of gay marriage?

According to the Supreme Court in Lee v Ashers Baking Company Ltd and Others [2018] UKSC 49, no.

The Appellants, Mr and Mrs McArthur, run Ashers Baking Company Ltd, a family owned business. The McArthurs are devout Christians who hold religious beliefs that the only form of full sexual expression which is consistent with Biblical teaching is that between a man and a woman within marriage and that the only form of marriage consistent with Biblical teaching is that between a man and a woman.

The Respondent, Mr Lee, placed an order with Ashers Baking to create a personalised cake where the design was to feature Bert and Ernie from Sesame Street with the headline ‘Support Gay Marriage’. Based on their religious beliefs however, Mr and Mrs McArthur refused to bake it.

Mr Lee launched a discrimination claim and succeed both at first instance and before the Northern Irish Court of Appeal, with both courts holding that there was direct discrimination on the grounds of sexual orientation.

The Supreme Court disagreed. Firstly, it held that the reason for the McArthurs treating Mr Lee less favourably than other would-be customers was not his sexual orientation, but the message he wanted to be iced on the cake. The McArthurs had refused to bake the cake due to their objection to gay marriage, not to gay people. It was found that the McArthurs had both employed and served gay people in the past and had treated them in a non-discriminatory way. The underlining point was that the McArthurs would have also refused to print the message had a heterosexual customer requested it.

Secondly, on the point of Mr and Mrs McArthurs’ political belief, it was held that they could not be forced to express a political opinion in which they did not believe. The McArthurs’ rights relating to religion and expression under Articles 9 and 10 of the European Convention on Human Rights included the right not to express an opinion. Again, the less favourable treatment received by Mr Lee was not based on him, or people he associated with being gay, the objection was to being required to print the requested message on the cake. The Supreme Court likened the situation to requiring a Christian business to print leaflets promoting an atheist message. Similarly, the McArthurs could not be forced to ice wording supporting gay marriage when this was something which they did not believe in.

For further information please contact Charles Avens, Senior Associate – E: c.avens@druces.com, or Harvey Pare, Trainee Solicitor – E: employment@druces.com