Resolving differences between protected characteristics – ‘Gay Cakes’ case

Lee v McArthur & Ashers Baking Company Limited [COA] | 2016

This case takes place in Northern Ireland where same-sex marriage is not permitted and when same-sex marriage was being debated in the Northern Ireland Assembly (and not passed into law).

Mr Lee is gay and placed an order with Ashers for a cake featuring Bert and Ernie (of Sesame Street fame) and the words ‘Support Gay Marriage’.

Mr and Mrs McArthur, directors of Ashers, are Christians and oppose same-sex marriage.

The order was cancelled because of the McArthur’s religious beliefs, their opposition to any change in the law and the view that same sex marriage was sinful.

Mr Lee brought a claim for breach of the duty of equal treatment in the supply of goods and services.

The case involved a conflict between religious (and political) beliefs and sexual orientation.

The Court of Appeal concluded that Mr Lee had been subject to direct discrimination on the basis of his sexual orientation.

The court said that Ashers’ and the McArthurs’ objection was to the use of the word ‘gay’ and this was associative direct discrimination as it corresponded with ‘those of a particular sexual orientation and those … [who] … supported the right to marry’.

The court rejected arguments by Mr and Mrs McArthur that their human rights were being infringed.  It concluded they weren’t as to do so has ‘potential for arbitrary abuse [that] would be substantial.’

This decision relied on Bull v Hall (the ‘hotel’ case) and attempts to strike a balance between protected characteristics.  A big part of the case was that the bakery was a for profit business and not a religious organisation.

It highlights the need for training on approaches that are and are not acceptable as between employees and also customers!