In the much-publicised judgment in Lee v Ashers Baking Co Ltd, the Supreme Court has ruled that it was not unlawful direct discrimination on the grounds of sexual orientation for a bakery to refuse to bake a cake bearing the message “support gay marriage”.  The bakery’s refusal was because its Christian owners profoundly disagreed with the message and not because of the customer’s sexual orientation, as heterosexual customers requesting such a cake would also have been refused.  The Court rejected the argument that support for gay marriage was “indissociable” from sexual orientation (ie used as a proxy for the customer’s orientation), given that people of all orientations can and do support gay marriage.

The contention that the treatment was discrimination on the grounds of association with the gay and bisexual community (as held by the Northern Irish Court of Appeal) was rejected on similar grounds – the objection was to the message and not because the customer was thought to associate with that community.  Further, the benefit of the message accrued to a wider group than just the gay and bisexual community, including the family and friends of gay people wishing to marry and the wider community.  The claimant was not alleging indirect discrimination before the Supreme Court.

The ruling seems to narrow the scope of what is deemed to be “on grounds of” sexual orientation, but leaves the position quite uncertain.  The Court stated that there needed to be something more than the reason for the treatment being “something to do with the sexual orientation of some people”, but failed to define clearly what does amount to a sufficiently close connection.  The Supreme Court referred to and seemed to cast doubt on a 2009 Court of Appeal decision (English v Thomas Sanderson Blinds) that homophobic taunts satisfy the test despite the victim not being gay nor perceived or assumed to be gay.  (The Equalities Act 2010 now refers to direct discrimination “because of” sexual orientation rather than “on grounds of”, but this was not intended to widen the scope;  in contrast, under the Equality Act harassment “related to” sexual orientation is unlawful, so the facts of English would remain unlawful harassment even if a narrower view of “on grounds of” or “because of” is taken for direct discrimination purposes.)

The Supreme Court also had to consider whether the bakery’s actions were direct discrimination on grounds of religious or political belief under the relevant Northern Irish legislation.  Again it considered that the reason for the bakery’s refusal was not the customer’s own political belief but rather its disagreement with the political message to be iced on the cake.  However, it was possible that the customer’s perceived political beliefs and the political message were so closely associated that they might be viewed as “indissociable”.  The Court therefore went on to consider the impact of the human rights to freedom of conscience and religion and freedom of expression.  It concluded that a service provider should not be compelled to express a message with which they deeply disagreed unless justified, even if no-one would assume on the facts that they supported the message.  Although the company itself (with its 65 staff, 6 shops and online presence) could not have human rights, the owners’ human rights could only be upheld by ruling for the company.

The decision leaves unclear exactly what amounts to a “message” which a service-provider cannot be compelled to express (unless justified), and whether this is confined to verbal messages.  Is the supply of a wedding cake decorated with two grooms, or an undecorated cake acknowledged to be for a gay wedding, the expression of a message?  Might the principle of compelled expression have assisted the Christian B&B owners in the earlier case of Preddy v Bull, where the Supreme Court ruled that the refusal to let a double-bedded room to a gay couple was unlawful (as they would only let the room to married couples and this was “indissociable” with sexual orientation because, at that time, only heterosexual couples could marry).  Could supplying a double-bedded room to a gay couple be seen as expressing a message of support for sexual relations between gay people?

The development of a human right against compelled expression could also be relevant in the employment context in businesses where employees may be required to express views with which they disagree (eg publishers, education, law).  Employers may need to tread carefully when considering dismissal for refusal to express such a view.