Hewitt & Gilpin successfully represents Ashers in the UK Supreme Court

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Public Law

Hewitt & Gilpin Solicitors acted for Ashers Baking Company Limited in its recent successful appeal to the UK Supreme Court in what has become known as the "gay cake case".

The facts of the case are well known and scarcely require repetition: Mr Lee placed an order for a bespoke decorated caked bearing the slogan "Queer Space – Support Gay Marriage". The order was accepted but subsequently cancelled, and the customer was refunded. He then reported the matter to the Equalities Commission which supported and funded his claim against Ashers.

Mr Lee contended that he was discriminated against contrary to the provisions of the Equality Act (Sexual Orientation) Regulations (NI) 2006 ("the SORs") and the Fair Employment and Treatment Order 1988 ("FETO"). This legislation makes it unlawful for persons providing goods or services to the public to discriminate against other persons on the grounds of their sexuality or religious beliefs or political opinion by refusing to provide them with those goods or services.

In the County Court, the Judge found that Ashers had unlawfully discriminated against Mr Lee in contravention of this legislation. Whilst acknowledging that Ashers was entitled to its belief that gay marriage was sinful, she found that:

"They are a business supplying services to all, however constituted. The law requires them to do just that, subject to the graphic being lawful and not contrary to the terms and conditions of the company"

The appeal brought by Ashers in the Court of Appeal was rejected by that Court prompting a further appeal by Ashers to the UK Supreme Court.

Ashers contended that they had provided goods to Mr Lee before and would do so again. However, they were simply not in a position to provide the graphic requested which offended their deeply held religious beliefs. They contended that they would have refused to accept any such order from any person irrespective of their sexuality and political beliefs: there was therefore no discrimination. In addition they argued that certain provisions of the European Convention of Human Rights ("ECHR") were relevant. In particular, Article 9 which provides that "everyone has a right to freedom of thought, conscience and religion" and Article 10 which provides that "everyone has the right to freedom of expression. This right shall include freedom to hold opinions".

In the Supreme Court, Lady Hale, who gave the unanimous judgement, found that in respect of the alleged breach of the SORs "the objection was to the message and not to any particular person or persons". In relation to the alleged breach of FETO, again, Lady Hale found that "the objection was not to Mr Lee because he, or anyone with whom he associated, held a political opinion supporting gay marriage. The objection was to being required to promote the message on the cake. The less favourable treatment was afforded to the message not to the man".

In relation to the arguments put forward by Ashers in relation to the ECHR, Lady Hale considered that Articles 9 and 10 were engaged and found that:

"it is, of course, the case that businesses offering services to the public are not entitled to discriminate on certain grounds. The bakery could not refuse to provide a cake...to Mr Lee because he was a gay man or because he supported gay marriage. But that important fact does not amount to a justification for something completely different – obliging them to supply a cake iced with a message with which they profoundly disagreed. In my view they would be entitled to refuse to do that whatever the message conveyed by the icing on the cake – support for living in sin, support for a particular political party, support for a particular religious denomination."

Lady Hale therefore found that:

"FETO should not be read or given effect in such a way as to compel providers of goods, facilities and services to express a message with which they disagree, unless justification is shown for doing so."

Whilst some clarity has been provided in the judgment and same has been rightly heralded as a victory for common sense, and the upholding of the important principle that individuals and businesses should not be compelled by the State to promote a particular political idea with which they oppose, there remains some uncertainty as to where the line will be drawn as between upholding freedom of religion, and conscience, and seeking to prevent discrimination being afforded on individuals. As ever, therefore, businesses are urged to continue to tread carefully in these complex areas and, where in doubt, seek appropriate legal advice.

Your contacts for related services:
Graeme Hamilton - Director - Hewitt & Gilpin Solicitors

Graeme Hamilton

Director
Helen Armstrong - Senior Associate - Hewitt & Gilpin Solicitors

Helen Armstrong

Senior Associate
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