‘Gay Cake’ Row: Why Are The Bakery’s Actions Unlawful?

May 19, 2015

Written By Billy Sexton, Editor, AllAboutLaw.co.uk

On Tuesday 19 May, a judge ruled that a bakery was guilty of unlawful discrimination by refusing to make a cake with a pro-gay marriage slogan.

District Judge Brownlie ruled that Ashers Baking Company, which is Christian-run and based in Northern Ireland, was not exempt from discrimination law as a business. Gareth Lee asked the bakery on May 9 2014 to print a picture of Bert and Ernie from Sesame Street (remember those guys?!) and the caption “Support Gay Marriage”. On May 12, Lee received a call from the bakery, who said that the order couldn’t be fulfilled because they are a Christian business and they should not have taken the order. They apologised and arranged for a refund.

Lee argued that he had been discriminated against contrary to the provisions of the Equality Act (Sexual Orientation) Regulations (NI) 2006 and the Fair Employment and Treatment (NI) Order 1988. Indeed, Regulation 16(2) of the former outlines that “This regulation does not apply to an organisation whose sole or main purpose is commercial”. Judge Brownlie concluded that because “The defendants are not a religious organisation; they are conducting a business for profit and, notwithstanding their genuine religious beliefs, there are no exceptions available under the 2006 Regulations which apply to this case”. The case summary also notes how the Judge outlined that the Regulations secured that homosexual people were treated the same as heterosexual people by businesses.

The Fair Employment and Treatment (NI) Order 1988 outlines that “A person discriminates against another person on the ground of religious belief or political opinion… on either of those grounds he treats that other less favourably than he treats or would treat other persons” and Judge Brownlie “said the defendants had disagreed with the religious and political belief held by the plaintiff… “I am satisfied that the defendants would have completed the order [if the plaintiff had chosen graphics which said “support heterosexual marriage” or “support marriage”] and would have had every right to do so. It is for the reason that the defendants objected to the word “gay” as they are totally opposed to same sex marriage which they regard as sinful that they refused the order”.

Additionally, Articles 9 (freedom of thought) and 10 (freedom of expression) of the European Convention on Human Rights were brought into the debate. The Judge noted that the rights outlined in these articles were protected in Northern Irish law, and also noted that a company cannot invoke Article 9 rights because it is a profit-making corporate body. Additionally, the bakery tried to claim they had a right not to express or commit to a viewpoint, but the Judge “held that what the defendants were asked to do did not require them to support, promote or endorse any viewpoint.”

There we have it! The legal reasons why no cake is illegal in Northern Ireland.

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