Cakegate – The Decision
Has the religion vs. sexual orientation protected characteristic debate now finished?
The Northern Ireland Court of Appeal yesterday released its judgment in the case of Lee v Ashers Baking Company in which it rejected the appeal of two Christian bakers who had refused to make a cake with a logo of Bert and Ernie, bearing the message “Support Gay Marriage”.
The case follows on from the 2013 decision in the case of Bull v Hall  UKSC 73, where the Supreme Court upheld the Court of Appeal in finding that a Christian couple running a hotel in Cornwall had unlawfully discriminated against a homosexual couple in a civil partnership by refusing to accommodate them in a double bedroom. The Court of Appeal had unanimously upheld the decision of HHJ Rutherford (himself a former member of Albion Chambers) in the Bristol County Court.
Clearly the case has political significance outside the scope of this article, however from an employment law perspective what is perhaps interesting is the discussion of direct discrimination.
In the Bull v Hall case the Supreme Court was split 3:2 on the issue. Factually, the couple had a policy whereby they would only let their double rooms to married couples. The majority held that this resulted in direct discrimination against a gay couple in a civil partnership, on the basis that the hoteliers’ definition of marriage was between one man and one woman, making the criterion ‘indistinguishable from sexual orientation’.
Quoting from Lade Hale’s judgment in that case, the Northern Ireland Court of Appeal in Lee v Ashers Baking Company held that in respect of the slogan “Support Gay Marriage” there was an ‘exact correspondence’ between those of the particular sexual orientation and those in respect of whom the message supported the right to marry. Accordingly while the bakers might have refused to make the cake for a heterosexual customer it was nonetheless a case of associative direct discrimination.
Having described the distinction between direct and indirect discrimination within our domestic law as ‘crucial’, one wonders whether Lady Hale and subsequently the NI Court of Appeal went too far in stretching the concept of direct discrimination. As Lord Neuberger remarked in his dissenting judgment in Bull v Hall, however much sympathy one may have with notion that the discrimination “ought to be” or “feels like” direct discrimination, the law needs to be clear, and the majority’s decision risks blurring that clarity.
Perhaps, in the light of those comments, the concept of associative direct discrimination relied on by the court in Lee v Ashers Baking Company can be seen as a further muddying of the waters.