The recent Supreme Court case of Lee v Ashers Baking Company Ltd [2018] has ended with a Judgment that has left some people, quite rightly, scratching their heads in confusion as to what is and isn’t discrimination under the law.

A gay man with links to an LGBT+ community group, ordered a cake from Ashers Bakery, a company based in Northern Ireland. Mr Lee wished Ashers to bake him a cake with a picture of Bert and Ernie, the two characters from Sesame Street often suspected to be a gay couple, with the slogan ‘Support Gay Marriage’. Although Ashers initially accepted the order, they later cancelled it on the grounds that they were unwilling to include that slogan on the cake, as it went against their fundamental Christian belief that marriage could only be between a man and a woman. Mr Lee was given an apology and a full refund.

Mr Lee issued proceedings against Ashers on the grounds of discrimination, claiming they were discriminating against him on the grounds of his sexuality. Ashers maintained that they did not refuse him service on the grounds of his sexuality, but on the grounds of the message itself. They were able to show non-discriminatory treatment of other gay customers, and gay members of staff. It was also able to establish that, had the order been made by a heterosexual customer, the order would still have been refused. The problem was with the message, not the messenger.

In the first instance, the Irish Court agreed with Ashers that they were not directly discriminating against Mr Lee on the grounds of his sexuality, but it was held that the message was so closely linked to his orientation it was a case of associated discrimination. The Court of Appeal upheld that view.

The Supreme Court dismissed those interpretations. It was ruled that Mr Lee’s sexuality was not linked to the message, as there are heterosexual people who support gay marriage, and so that cannot be intrinsically linked to Mr Lee’s sexual orientation. There was therefore no direct or indirect discrimination. The Supreme Court also ruled that Ashers were entitled under the European Convention on Human Rights to refuse to produce a cake iced with a message with which they profoundly disagreed.

The issues arising from this judgment revolve around the fine distinction the Supreme Court has drawn between discrimination and freedom of speech and expression under the ECHR. While some cases are clear, such as refusing a homosexual couple a room in a hotel (as in the case of Preddy v Bull [2013]), where the matter is linked to the supply of services, it would appear there is a blurring of lines. There will, I am sure, be many other cases testing this area of law before there is a degree of clarification.

If you believe that you have been the victim of unlawful discrimination on the grounds of sexuality, religious belief or disability please contact James Crussell or another member of our Civil Litigation team on 01638 560556.