Lee v Ashers Baking Company Ltd and others (Northern Ireland) [2018] UKSC 49

In brief

The bakery won. The Supreme Court unanimously allowed the appeal of Ashers Baking Company and its owners, who had refused to ice a cake with the slogan 'Support Gay Marriage' for Mr Lee, holding that "the Supreme Court can and should allow the appeal in respect of both SORs and FETO" [90]. There was no direct discrimination on grounds of sexual orientation: the objection was to the message, not the messenger, and the bakery would have refused that cake to anyone, whatever their personal characteristics [22], [62]; any association with gay people was not close enough for associative discrimination [33]-[34]. On the political opinion claim under the Fair Employment and Treatment (Northern Ireland) Order 1998, the protected belief or opinion must be that of someone other than the person giving the treatment, so the owners' own religious belief could not found the claim [45]. The Court doubted that Mr Lee was treated less favourably for his political opinion [47], [56], but held that the Order should not be read or given effect so as to compel providers of goods, facilities and services to express a message with which they disagree unless justification is shown, and none had been [56], [62]. The Court also said that the bakery could not refuse to provide a cake to Mr Lee because he was gay or because he supported gay marriage [55], and that denying someone a service because of a protected characteristic is an affront to human dignity [35]. The claims were under Northern Ireland legislation; the Equality Act 2010 was not considered.

Key provisions

• para-22 — Sexual orientation: the objection was to the message, not the messenger : Per [22], the District Judge found that the bakery cancelled the order because its owners opposed same sex marriage on religious grounds, and it was not disputed that the bakery would have supplied Mr Lee with a cake without the slogan and would have refused a cake with that slogan to a heterosexual customer: "The objection was to the message, not the messenger." Per [23], counsel for the bakery argued that anyone who wanted that message would have been treated in the same way. Per [62], the bakery would have refused to supply this particular cake to anyone, whatever their personal characteristics, so there was no discrimination on grounds of sexual orientation.
• para-62 — The line between refusing a message and refusing a customer : Per [62], drawing on the Masterpiece Cakeshop judgment of the Supreme Court of the United States [59]-[61], "there is a clear distinction between refusing to produce a cake conveying a particular message, for any customer who wants such a cake, and refusing to produce a cake for the particular customer who wants it because of that customer's characteristics". Per [62], one can debate which side of the line particular facts fall, but here there was no doubt: the bakery would have refused this cake to anyone. Per [62], if and to the extent that there was discrimination on grounds of political opinion, no justification had been shown for the compelled speech that imposing civil liability would entail.
• para-25 — Indissociability is for proxies; support for gay marriage is not a proxy for sexual orientation : Per [25], the District Judge misunderstood the role of indissociability in direct discrimination: it comes into play when the overt criterion for the treatment is not the protected characteristic itself but a proxy for it, as in James v Eastleigh Borough Council and Preddy v Bull. Per [25], people of all sexual orientations support gay marriage, so support for gay marriage is not a proxy for any particular sexual orientation.
• para-33 — Associative discrimination needs a closer connection : Per [27], the definition in regulation 3(1)(a) of the Sexual Orientation Regulations is not limited to the sexual orientation of the person treated less favourably. Per [33], it is not enough that the reason for the treatment has something to do with the sexual orientation of some people; there must be a closer connection than that. Per [34], it would be unwise in this case to define how close the association must be, but the association here would not have been close enough: the objection was to the message and not to any particular person or persons.
• para-35 — Denying someone a service because of a protected characteristic is an affront to dignity : Per [35], Lady Hale said that the conclusion did not minimise the very real problem of discrimination against gay people, and that providers of employment, education, accommodation, goods, facilities and services do not always treat people with equal dignity and respect: "It is deeply humiliating, and an affront to human dignity, to deny someone a service because of that person's race, gender, disability, sexual orientation or any of the other protected personal characteristics." Per [35], that is not what happened in this case, and it does the project of equal treatment no favours to extend it beyond its proper scope.
• para-45 — The protected belief must be that of someone other than the discriminator : Per [42], one argument before the District Judge was that discrimination under the Order could take place on the grounds of the discriminator's own religious belief and political opinion. Per [43], counsel for the bakery argued that this could not be right, because the purpose of discrimination law is to protect a person who has a protected characteristic, and the motive of the alleged discriminator is irrelevant. Per [44], Lady Hale reasoned that such a reading would be inconsistent with the comparison with other persons required by article 3(2)(a) of the Order, because if treatment were on grounds of the discriminator's beliefs everyone would be treated alike, and also with the definition of indirect discrimination and the exemptions for religious denominations and political parties. Per [45], "the less favourable treatment prohibited by FETO must be on the grounds of religious belief or political opinion of someone other than the person meting out that treatment".
• para-47 — Political opinion: treatment afforded to the message, but a closer association with the man : Per [47], it may well be that there was no less favourable treatment on grounds of political opinion because anyone else would have been treated in the same way; the objection was to being required to promote the message on the cake, and "The less favourable treatment was afforded to the message not to the man." Per [47], the owners were prepared to serve Mr Lee in other ways. Per [48], there was a much closer association between Mr Lee's political opinion and the message, such that it could be argued they were indissociable; that would not always be so, because a person ordering a message may be indifferent to it, but Mr Lee was perceived as holding the opinion, so the Court went on to consider the owners' Convention rights. Per [56], the Court acknowledged the possibility that there was discrimination on grounds of political opinion.
• para-56 — Compelled speech: the Order is not read to compel a message unless justification is shown : Per [50]-[53], obliging a person to manifest a belief they do not hold limits their rights under article 9 of the European Convention on Human Rights, and article 10 protects the right not to express an opinion. Per [54], by being required to produce the cake the owners were being required to express a message with which they deeply disagreed, whether or not others would think they supported it. Per [56], applying section 3(1) of the Human Rights Act 1998, "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." Per [57], to hold the company liable when its owners were not would negate their Convention rights; the Court did not hold that the company has article 9 rights.
• para-55 — A provider cannot refuse the person because of a protected characteristic; producing a message is something completely different : Per [55], articles 9 and 10 are qualified rights, and businesses offering services to the public are not entitled to discriminate on certain grounds: "The bakery could not refuse to provide a cake - or any other of their products - to Mr Lee because he was a gay man or because he supported gay marriage." Per [55], that does not justify something completely different, obliging the owners to supply a cake iced with a message with which they profoundly disagreed; they would be entitled to refuse whatever the message, and the fact that this message had to do with sexual orientation is irrelevant to the claim under the Order.

When relevant

Reach for Lee when one of three arguments is made. First, that the alleged discriminator's own belief or institutional position was the reason for the treatment: the protected belief must be someone else's [45], a rule the Employment Tribunal applied by analogy to section 13 of the Equality Act 2010 in PEGGIE-RCN-ET-2026 [114]. Second, that a provider refused to produce or endorse particular content and would have refused it to anyone [22], [62]. Third, that providers of goods, facilities or services cannot be compelled to express a message they disagree with unless justification is shown [56] (its extension to staff is untested). It works both ways: it does not support refusing a person because of who they are [35], [55]; where the requested content is bound up with the customer's own protected opinion, the message and messenger line may not be decisive and the question moves to the Convention rights and justification [48], [56]; and a compelled-speech argument fails where justification is shown [56]. It binds on the Northern Ireland legislation it construed and governs providers of goods, facilities and services to the public and their customers there; for the Equality Act 2010 it is persuasive by analogy only. Its compelled-speech reasoning comes from a services case, so its use in employment, including staff refusing to use a colleague's pronouns, has not been decided by an appellate court. Decision support, not legal advice.