When Rights Collide – Gay Rights v Religious Belief

Today the County Court of Northern Ireland made its decision that Ashers Baking Company Limited directly discriminated against a customer on the grounds of sexual orientation contrary to the Equality Act (Sexual Orientation) Regulations (Northern Ireland) 2006 (the 2006 Regulations) and political opinion contrary to the Fair Employment and Treatment (Northern Ireland) Order 1998 (the 1998 Order). The case of Gareth Lee –v- Ashers Baking Company Limited, Colin McArthur and Karen Agnes McArthur has been heavily publicised across the world in what the media have labelled the 'Gay Cake' row.

In detail – the case facts

The first defendant, Ashers Bakery Company Limited, operated by the second and third defendants, Colin and Karen McArthur, is a family owned bakery chain in Northern Ireland, with six branches and over 60 members of staff. One of the Company's services is to supply and decorate baked goods ordered by customers. The Plaintiff, Gareth Lee (supported by the Equality Commission for Northern Ireland) is involved in a voluntary organisation, Queer Space, which serves to support the Lesbian, Gay, Bisexual and Transgender community. In May 2014, the Plaintiff placed an order with the Company for a cake with a slogan stating 'Support Gay Marriage'. The order was accepted by the third defendant, paid for by the Plaintiff and a receipt was provided to him. However, following discussions between the second and third defendant in the following days, it was decided that the order conflicted with the second and third defendant's Christian beliefs. The Plaintiff was contacted by the Defendant to apologise that the order could not be processed and to arrange for a full refund.

In focus – the decision

The Judge, in considering her decision, acknowledged that the second and third defendants held 'genuine and deeply held religious beliefs' in respect of marriage and that they sought to live at all times by the Biblical doctrine. However, the Judge also noted that the first Defendant was not a religious organisation, and its main purpose was to operate its business on a commercial basis for profit - there was no reference to furthering religious values within the Company's Memorandum and Articles of Association. Therefore, it could not rely on the statutory exemption for organisations in relation to religious belief, pursuant to regulation 16 of the 2006 Regulations.

Furthermore, the Judge stated that the debate on same-sex marriage is 'inextricably linked' to sexual orientation and that the Plaintiff was afforded protection from discrimination under the 2006 Regulations. The slogan which the Plaintiff requested was an entirely lawful slogan.

Judge Brownlie found that the second and third defendants were therefore guilty of Direct Discrimination for which there could be no justification and had breached Regulation 5 of the Equality Act (Sexual Orientation) Regulations (Northern Ireland) 2006 and Article 3 of the Fair Employment and Treatment (Northern Ireland) Order 1998 in their failure to provide goods and services to an individual on the grounds of their sexual orientation and political opinion.

In addressing the human rights arguments posed by each of the parties' legal representatives, the Judge expressed that a fair balance of competing rights was required. The Judge continued by giving the example that a homosexual baker could not refuse a request to bake a cake with a slogan which supported heterosexual marriage. The Judge emphasised that religion is not 'in the business' of governance and highlighted the 'well-recognised line between the church and the state', noting that religious belief cannot dictate the law – that it a matter for the Northern Ireland Assembly to consider in its legislative capacity. On that point, the 'Gay Cake' row has prompted a proposal to include a so called 'conscience clause' in equality legislation – a move which has already attracted political input from Westminster.

In practice – consideration for employers and service providers

The circumstances surrounding this case are indeed complex and demonstrate how one aspect of the law does not necessarily fit with another aspect. This is an apt example of conflicting rights and protection from discrimination, whether direct or indirect.

One key point to note from this judgement is the fact that whilst the directors of the Company held a genuine religious belief, it does not necessarily follow that the corporate entity reflected this belief. The Company's principle objective was to operate on a commercial basis to provide a service to all members of the public, for profit. Directors, servants and agents of companies should therefore keep this in mind in business operations.

Notwithstanding this, courts will make decisions based on the particular circumstances of each case presented to them. The courts will look to well-founded principles such as proportionality and reasonableness and it is imperative that employers and service providers are guided by these principles in making decisions in the workplace.

The judgement will likely be appealed by the Defendants and we will continue to update you on any further progress. For further information please contact a member of our Employment team.

Date published: 19 May 2015