Refusal to provide a cake supporting gay marriage was not sexual orientation discrimination

In Lee v Ashers Baking Company Ltd and ors, the Supreme Court has held that a bakery did not discriminate against a gay man when it refused to provide him with a cake bearing a message of support for same-sex marriage.

Ashers is a bakery in Northern Ireland. Mr Lee ordered a cake from Ashers with the logo ‘ Support for Gay Marriage’ and the Sesame Street characters Bert and Ernie on it. Bert and Ernie are the logo for QueerSpace, an organisation for the LGBT community in Northern Ireland with which Mr Lee was a volunteer. The order was initially accepted but Mr Lee was contacted a few days later and told it could not be fulfilled as the bakery was a ‘Christian business.’ The bakery’s refusal was based on the owner’s Christian beliefs that the only form of marriage acceptable to God was between one man and one woman. Mr Lee brought proceedings against Ashers for sexual orientation discrimination.

The Supreme Court, in overturning the earlier decisions, held that Ashers did not refuse tofulfil the order because of Mr Lee’s sexual orientation. Their objection was to the message on the cake -they would equally have refused to supply a cake bearing this slogan to a heterosexual person.

However, whilst this case indicates that providers of goods and services may not be required to endorse messages they disagree with, it should not be seen as alicence for either service providers or employers to behave in this way without the risk of legal claims. It remains to be seen whether the same decision would be reached in a case involving a protected characteristic that is subject to less political and religious disagreement. For example, it is hard to imagine a court holding that a refusal to provide a cake with a slogan “support mixed-race marriage”, did not amount to race discrimination.