Ashers: the lawyer’s view

by Sam Webster
In-house Solicitor, The Christian Institute

The remarkable judgment of the United Kingdom Supreme Court (UKSC) in Lee v Ashers Baking Company will affect courts in all parts of the UK in their future application of discrimination and human rights law.

The UKSC accepted that the McArthurs’ objection was “to the message and not to any particular person or persons”. As the judgment states: “The evidence was that they both employed and served gay people and treated them in a non-discriminatory way.”

And just because the message on the cake “has something to do with sexual orientation of some people” does not mean that it is a case of discrimination on grounds of sexual orientation. There must be a closer association. The ‘benefit’ from the message on the cake – “Support Gay Marriage” – does not accrue exclusively to homosexual people, and a person’s sexual orientation does not determine whether they support gay marriage. The Supreme Court justices therefore rejected the argument that there had been ‘associative discrimination’.

On political opinion discrimination, the UKSC accepted that there was a closer association between Mr Lee and the message that he wanted promoting. The McArthurs did perceive Mr Lee as holding the political opinion that there should be same-sex marriage in Northern Ireland. However, regard must be had to the McArthurs’ fundamental rights to freedom of thought, conscience and religion and freedom of expression.

Principles from the Ashers case will impact other cases for years to come, not only in goods and services but also in other spheres. This is good news.

The UKSC agreed that those rights afford protection against “compelled speech” – by being required to produce the cake the McArthurs were required to express in icing a message with which they deeply disagreed. Significantly, the UKSC accepted that the principles of compelled speech which have developed in the US can apply in the UK. The lower courts had rejected this approach, saying that no one would have thought the McArthurs believed in same-sex marriage if they had produced the cake as ordered. But the UKSC held that there is no requirement that the person who is compelled to speak can only complain if he is thought by others to support the message.

Contrary to the submission made by the Equality Commission for Northern Ireland, the UKSC also dismissed the notion that the McArthurs had discriminated on grounds of their own religious beliefs or political opinions. The UKSC said that the less favourable treatment prohibited by Northern Ireland’s Fair Employment and Treatment Order must be on grounds of religious belief or political opinion of someone other than the person responsible for that treatment. If the earlier findings had stood, it could have meant Christian service providers having fewer rights than atheists. For example, a Christian printer might not be able to refuse to print an advert for Ladbrokes, even though the order does not involve a characteristic protected under equalities legislation.

The Ashers case was about the proper scope of discrimination law, with particular focus on the issue of compelled speech in the facts of the case. The application of the judgment to other cases will therefore depend on the context. So it is essential that businesses and others seek appropriate legal advice in relation to their own particular set of circumstances.

It remains unlawful to discriminate on grounds of protected characteristics such as religion or sexual orientation.

For example, the judgments in the earlier bed and breakfast cases still stand, together with the principles established by the courts in those cases.

Nevertheless, principles from the Ashers case will impact other cases for years to come, not only in goods and services but also in other spheres. This is good news.

The phrase ‘landmark judgment’ can often be overused. But in terms of what will surely flow from Ashers, it is most apt.

This article only contains a general summary of the Ashers case and is not a complete or definitive statement of the law.