Can You Have Your Cake And Eat It?

In a decision issued earlier this week by the Northern Ireland Court of Appeal, it has been confirmed that the refusal by Ashers bakery to supply a cake with a slogan which supports gay marriage was unlawful discrimination.

Briefly, the facts in this case were that in May 2014, Mr Gareth Lee, who is gay, ordered a cake with the message “Support Gay Marriage” and depicting the Sesame Street characters, Bert and Ernie.  The owners of the bakery, the McArthurs, refused to fulfil that order.  They are Christians and the reason for refusal was because of their religious beliefs. They are opposed to the proposed change in the law around same sex marriage as they see that as sinful.  The claim issued by Mr Lee was for breach of a statutory duty in and around the provision of goods facilities and services.  He claimed that by failing to provide the cake to him that he had been discriminated against on the grounds of sexual orientation and on the grounds of political opinion.  He succeeded in his claim in the County Court earlier this year and so the McArthurs appealed that decision to the Court of Appeal.

The Court of Appeal upheld that decision.  In their decision, the Court of Appeal asked how opposing beliefs should be dealt with, under the applicable legislation.

The Court answered:

“The answer is not to have the legislation changed and thereby remove the equality protection concerned.  The answer is for the supplier of services to cease distinguishing, on prohibited grounds, between those who may or may not receive the service.  Thus the supplier may provide the particular service to all or to none but not to a selection of customers based on prohibited grounds.  In the present case the appellant might elect not to provide a service that involves any religious or political message.  What they may not do is to provide a service that only reflects their own political or religious message in relation to sexual orientation.”

The McArthurs then went on to argue that they would be endorsing gay marriage by baking the cake.  However, the Court of Appeal rejected this by saying:

“The fact that a baker provides a cake for a particular team or portrays witches on a Halloween cake does not indicate any support for either.”


What does this mean for businesses?

It seems that the points to take away from this Judgment are that businesses should provide their services to all customers equally, or else stop providing that service altogether, otherwise, they will face the risk of discrimination claims arising.  It will, however, be interesting to see what happens next with this case and whether the McArthurs will endeavour to appeal.  The next point of appeal would be to the UK Supreme Court in London. We shall have to watch this space.

Rachel Richardson is a Director in Tughans specialising in Employment Law.


While great care has been taken in the preparation of the content of this article, it does not purport to be a comprehensive statement of the relevant law and full professional advice should be taken before any action is taken in reliance on any item covered.