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Anyone for Cake

In the Asher’s Bakery case, Mr Lee, a gay man sought to purchase from Asher’s Bakery a cake bearing the message “support gay marriage”. The Bakers initially accepted the order in order to avoid embarrassing him but later declined it and returned the money. They could not fulfil the order consistently with their religious beliefs. Mr Lee brought a claim for sexual orientation discrimination and discrimination on the grounds of his political beliefs which succeeded at first instance. Crucially however, the District Judge did not find that that he was refused bakery services because he was gay or was perceived as being gay.

The NI Court of Appeal held that this was direct discrimination on the grounds of sexual orientation whether or not the customer was gay. In other words, the result would the same even if the customer was a heterosexual supporter of gay rights. This was because such a person would be associated with homosexuals and therefore be protected by the legislation. The concept of associative discrimination was relied upon.

The Court considered whether, in order to make the legislation compliant with the Human Rights Act, the regulations should be read as containing an exception in the case such as this where the alleged discrimination was expression of religious belief (Article 9) or a manifestation of freedom of speech (Article 10)

The Court said that no such exception was necessary. The Legislature had already balanced the conflicting rights of gay and religious communities and come down in favour of the former.

In the Supreme Court, the Asher’s appeal was allowed on the grounds that the objection was not to any particular person’ s sexuality but to the message. It is well recognized that a person may suffer actionable discrimination because of a third party’s protected characteristic Thus a mother may suffer disability discrimination when she is treated less favourably because she has a disabled child: Coleman v Attridige Law [2008] ICR 1128.  However said Lady Hale the Court of Appeal had stretched that concept too far. Perhaps (though the Court viewed it as unwise to explore the precise bounds of associative discrimination) that was because there was no identifiable individual with whom Mr Lee was associated.

The refusal to extend the concept of associative discrimination as the Court of Appeal in Ireland had done is not a matter of logic. Rather it is of a choice fr a competing value namely freedom of speech,  said the Supreme Court included the right not to speak. It held in part by reference to US Supreme Court Jurisprudence that Article 10 includes protection against forced speech.

Moreover, this principle was engaged whether or not consumers of the cake would have perceived the Baker’s as being supporters of the message on their cake. It was enough if they were forced by the threat of civil action to support the message.

For this reason, it rejected Mr Lee’s alternative claim that he was being discriminated against on the grounds of his political views. Even if this was prima facie the case, the relevant legislation had to be read down to make it compliant with Article 10.

Thus the Supreme Court drew a distinction between refusing someone a service because of the sexual orientation (or race etc) which is illegal (see Bull v Head) and refusing to support their cause which is not.

This case has profound implications. For example:

1.    Is a local authority entitled to require its suppliers to show that they have the endorsement of (say) Stonewall?

2.    Is an employer entitled to invite its staff to sign a petition in support of transgender rights?  Would there in such a situation be a real choice and if not is that an example of forced speech.

3.    Would a conservative Muslim photographer be able to refuse to do the photography at a gay marriage?  This would seem to depend on whether she is refusing to provide a service or refusing to use her creative skill in a way which celebrates gay marriage. The distinction seems somewhat fine. If the Registrar is celebrating a marriage why is this not true of the photographer?

4.    And what of Mrs Ladelle a Christian registrar who was disciplined for refusing to celebrate same sex partnership. The Courts held that she was not being asked discriminated against on the grounds of her religious beliefs. Rather she was being disciplined for discriminating on he grounds of sexual orientation. But why in the light of Asher’s should the Courts not take seriously the fact that she was being asked by her employer to celebrate ie participate joyfully in the occasion and thus by demenour and smile send a message.

What the last two example tells us is the problem with the Asher’s case is that as American Jurisprudence has recognized freedom of expression and the freedom not to express is not just confined to the uttering of words. Indeed it is telling that in the Masterpiece Bakery case decided just before the Ashers case the majority of the American Supreme Court criticized Colerado Human Rights Commission for failing to treat even-handedly

a)    A Christian baker who had refused to produce a cake for a gay marriage because the Baker opposed Gay marriage on in religious grounds

b)   Gay bakers who had refuse to produce cakes bearing messages critical of the institution of gay marriage.

according to a majority of the Court, all the Bakers were make expressive statements

Thus whatever one’s politics the problem with the Asher’s decision is that it relies upon unstable distinctions relating to the bounds of associative discrimination and between providing a service and sending a message. There may be trouble ahead.

 

The recent decision of the Court of Appeal in Northern Ireland Court of Appeal in Lee v Ashers Bakery is wrong, as was the previous decision of Supreme Court in Bull v Head because in order that existing law be compliant with the HR Act it ought to be permissible to discriminate in the provision of good and services if

a)    The discrimination is based on the alleged discriminators relithe gious beliefs

b)   The refusal to provide the service was private and respectful

c)    The alleged victim can obtain the service elsewhere with little difficulty.

The contrary view amounts to finding the legislature can have a legitimate aim of pursuing a goal (the protection of gay rights) regardless of the proportionality of the steps taken and the harm to the rights and freedoms of others.

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