InsightsInsight - Commercial Dispute Resolution - POSTED: October 25 2016
Lee v Ashers Baking Co Ltd and others Appeal Decision: ‘Gay cake’ appeal decision outcome
Two years ago Ashers Baking Company, based in County Antrim, refused to make a cake saying: ‘Support Gay Marriage’ from an order placed by gay rights activist Gareth Lee.
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Lee took the company to court where it was said by the judge that ‘Ashers was not exempt from discrimination law’. Damages of £500 were agreed in advance of the judgement by both sides’ legal representatives, with Mr Lee saying the money would be donated to charity.
Ashers initial ruling was that their refusal to make the cake was discriminatory; it was quite clear there was an issue of direct discrimination towards a protected personal characteristic. The judge founded the ruling on the basis that Ashers was ‘conducting a business for profit’ and was not a religious group even though it acknowledged their religious views were ‘genuine and deeply held’.
Sexual orientation is one of nine ‘protected characteristics’ defined by the Equality Act 2010 (and in this case enacted in Northern Ireland by The Equality Act (Sexual Orientation) Regulations (Northern Ireland) 2006) and direct discrimination involves treating someone less favourably than others because of that protected characteristic. So for example in this situation, the act of refusing to make a cake with icing stating ‘Support Gay Marriage’ was directly discriminating against a client on the basis of his right to express his sexual orientation. The case clearly highlighted continuing tensions, still present in the UK, between equality law and freedom of conscience for religious groups whose beliefs do not accept same-sex marriage.
On Monday, the Christian owners of the Northern Irish bakery lost their appeal. The appeal decision was based on Ashers’ assertion that their refusal was not discriminatory as it was against the bakers’ religious views. The court decided that icing a message did not mean that you supported that message. The judges stated: ‘the fact that a baker provides a cake for a particular team or portrays witches on a Halloween cake does not indicate any support for either’.
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