“Gay cake” row to go to Europe

Dispute Resolution - 2 minutes read

The United Kingdom is being taken to the European Court of Human Rights over a decision made by the Supreme Court about the rights of a business to refuse to sell goods to a customer. 

Last year, the Supreme Court decided that Ashers Bakery, could refuse to sell its customer, Mr Lee, a cake because the message on it, “Support gay marriage”, conflicted with the personal religious beliefs of the owners of the bakery.  In a controversial decision, the Supreme Court distinguished between discrimination on the grounds of Mr Lee’s sexual orientation, which would have been unlawful, and the bakery’s objection to the message on the cake.  The Supreme Court held that the bakery had objected to “the message, not the messenger”.  The evidence showed that the bakery both employed and served gay people, treating them equally.  People of all sexual orientations could support gay marriage and the bakery would have treated Mr Lee the same way, regardless of his sexual orientation so the bakery did not discriminate against Mr Lee.  

The Supreme Court’s judgment did not set out the legal test that should be applied in this situation, so it has been difficult for businesses to know when they can object to “the message, not the messenger” and for lawyers to advise on what conduct is discriminatory.  For example, taking the baking analogy further, if a same sex couple ordered a wedding cake which had no features that showed it was meant for a same sex wedding, it is likely that the baker would be discriminating against a same sex couple if they refused to bake it.  However, could a baker refuse to bake a cake if it included a picture of a same-sex couple or another message which made it clear the cake was intended for a same-sex marriage?  The Supreme Court judgment does not answer the question.  Hopefully, the ECHR’s judgment will provide some much needed clarity.

P.S. It is virtually impossible to write anything at the moment without mentioning Brexit, so I couldn’t finish this post without clarifying whether Brexit could affect the ECHR’s judgment.  In short, it won’t.  The right to bring claims in the European Court of Human Rights will not change if the United Kingdom withdraws from the European Union.  Brexit only affects the United Kingdom’s membership of the European Union.  The European Court of Human Rights is independent of the EU and is based on the European Convention on Human Rights.  The United Kingdom became a signatory to the European Convention on Human Rights (which is a separate international treaty to the treaties which govern membership of the European Union) and passed the Human Rights Act 1998 so citizens could enjoy the human rights the ECHR affords.  Parliament would need to pass separate legislation if it wanted the ECHR to cease to apply in the UK.

The Supreme Court ruling blurred the line, creates legal uncertainty for all of us in Northern Ireland, and the ECHR is the appropriate place to clarify this issue.'