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Who's rights are right?

Napthens - December 8th 2016

Northern Ireland is the only place in the UK where same sex marriage is against the law. The potential for the conflict between the rights of the Lesbian Gay Bisexual and Transgender (LGBT) community and the religious community has been a long feature of public debate in Northern Ireland. In the midst of heated alternate political opinions, the Northern Ireland Court of Appeal handed down its judgment on the 24th October in the so called ‘Gay Cakes’ case; Lee v McArthur and Ashers Baking Company Limited (“Ashers Bakery”).

Ashers Bakery is a baking company headed by Mr and Mrs McArthur. They accepted an order from Mr Lee to provide a cake with a picture of Sesame Street characters Bert and Ernie bearing the slogan 'Support Gay Marriage'. On reflection Mrs McArthur felt that as devout Christians, who consider homosexuality a sin, making this cake would be hostile to their own beliefs and thus contacted Mr Lee to cancel the order and provided a refund.  Mr Lee successfully obtained his requested cake from another establishment and in time for its intended purpose.

The Equality Commission for Northern Ireland subsequently wrote to Mr and Mrs McArthur indicating that Ashers Bakery had breached equality laws and requiring them to make a payment in damages to Mr Lee for breach of a statutory duty about the provision of goods, facilities and services.

The accused breach related to the Equality Act (Sexual Orientation) Regulations 2006:

Discrimination on grounds of sexual orientation

3.—(1) For the purposes of these Regulations, a person (“A”) discriminates against another person (“B”) if —

(a) on grounds of sexual orientation, A treats B less favourably than he treats or would treat other persons; or

(b) A applies to B a provision, criterion or practice which he applies or would apply equally to persons not of the same sexual orientation as B; but —

(i) which puts or would put persons of the same sexual orientation as B at a particular disadvantage when compared with other persons;

(ii) which puts B at a disadvantage; and

(iii) which A cannot show to be a proportionate means of achieving a legitimate aim;

(2) A comparison of B’s case with that of another person under paragraph (1) must be such that the relevant circumstances in the one case are the same, or not materially different, in the other.

Goods Facilities and Services

5.—(1) It is unlawful for any person concerned with the provision (for payment or not) of goods, facilities or services to the public or a section of the public to discriminate against a person who seeks to obtain or use those goods, facilities or services —

(a) by refusing or deliberately omitting to provide him with any of them

The Court sought to answer two necessary questions to determine whether there had been (direct) discrimination. First, had there been less favourable treatment to a protected group? Second was the protected characteristic the reason why? The Court found:

“The benefit from the slogan could only accrue to gay or bisexual people. The appellants would not have objected to a cake carrying the message ‘Support Heterosexual Marriage’… There was an exact correspondence between those of the particular sexual orientation and those whom the message supported the right to marry.  This was a case of association with the gay and bisexual community and the protected personal characteristic was the sexual orientation of that community. Accordingly this was direct discrimination.”

The McArthurs put forward that their own Human Rights were engaged under Article 9 (freedom of thought, expression and religion) and Article 10 (freedom of expression). They argued that the Court should strike a balance between their rights and the prohibition on discrimination arising from sexual orientation in the provision of goods, facilities or services. The Court rightly engaged the view that Article 9 is limited to the extent that it pursues a legitimate aim which is proportionate to the means employed.

Their finding was that the McArthurs were not endorsing or promoting gay marriage by providing icing on a cake donning the slogan as requested, nor were they associating themselves with such a message. On this basis the McArthurs’ refusal to complete the order was discriminatory. Similarly no further issues were engaged under Article 10.

This is not, as the media has splashed, demonstrative that rights linked to sexuality will prevail where there is a conflict with religious belief. Regulation 16 of the 2006 Regulations specifically excludes its application to religious organisations and operations other than those organisations and operations that are solely commercial (such as Ashers Bakery). Furthermore the Court recognised that if the bakery would not have made any cake with a political or religious meaning then there would be no direct discrimination.

This case should serve as a warning for business owners wishing to assert their beliefs in the commercial sphere on the unexpecting consumer; if you open your doors you must let everyone in.