Does discrimination law oblige devout Christian business people to fulfil customer orders that conflict with their religious beliefs?
Yes, it does, say the courts, in a decision that may affect what goods and services customers can insist that businesses supply in many situations, and not just the icing on a cake, which is what the judges had to rule on in this case.
“Ashers Baking Company”, of Belfast, is nothing to do with Jane Asher, the actress, baker to the famous and author of “Jane Asher’s Cakes”.
It is named after Jacob’s prophecy in Genesis 49:20 for one of the tribes of Israel “Bread from Asher shall be rich”. You can possibly guess from this that the Arthur family, who own it, are Christians whom to the letter of the Bible is important.
In 2014 Mr Gareth Lee, a gay rights activist, who had previously bought items from Ashers Baking Company’s shop, learned that they could make personalised cakes for birthdays and celebrations decorated with scanned images supplied by their customers, and ordered a cake from them to be captioned “Support Gay Marriage” with a picture of the characters Bert and Ernie from the American children’s programme ‘Sesame Street’.
Mr Lee’s cake order was declined because of the owners’ opposition, based on what they believed the Bible taught them, to the idea of same-sex marriage. Was this legal?
No, the courts have now ruled in the case of Lee v McArthur & Ashers Baking Company Ltd, Northern Ireland Court of Appeal 24 October 2016. The owners tried to argue that they were not discriminating against Mr Lee because he was gay; they were quite willing to supply him and other gay customers with bread and cakes, just not a cake with that particular slogan that directly offended against the owners’ own beliefs. The owners also tried to argue that the law should protect their religious beliefs in this. Their arguments failed and they have been ordered to pay Mr Lee £500 compensation. This is way more than the £36.50 they would have charged for the cake, although trivial beside what the legal bills for this two year case will have cost them. Mr Lee’s case was funded by the Equality Commission for Northern Ireland. There is no knowing how much time and stress this case must have cost both sides.
While this is the decision that most legal commentators in Great Britain predicted, it is still a little surprising that it occurred in in Northern Ireland where, unlike England, Scotland and Wales, same sex marriages are still illegal.
As so often, while the court was conscious that it was declaring a legal principle of much wider application, it did not attempt to give any guidance as to how far the implications go.
So what does this mean for everyone else? Well, for a start the same principles will apply to buying and selling goods and services of all kinds, not just the icing on the cake.
The law now bans many different kinds of discrimination, not just for race, nationality, gender and sexual orientation (e.g. being gay, although in theory it is illegal to discriminate against heterosexuals too) but also age, both against the young and the old, disability (which can include, for instance, long-term depression) and religion or ‘philosophical belief’, which can even include a passionate concern about global warming.
Therefore, it is probably now be illegal for a business to refuse on grounds of conscience to print pamphlets, supply personalised mugs or stationery etc. that promote Paganism, Islam, Scottish Independence, sex for the over 60s and many other things.
The business can still refuse for a genuine commercial reason that is nothing to do with discrimination, such as if the business has stopped supplying or personalising that kind of goods altogether, or if what the customer wants is uneconomic for some reason.
Also, this only applies to kinds of discrimination banned by law. It is perfectly legal, for example, for business people who support Manchester United football team, if they really want to, to refuse to make or sell rival team Manchester City’s branded merchandise. There is no law against discriminating on grounds of loyalty to sports teams. That is, unless possibly it is to do with a racial or religious group that tend to support that team, e.g. in Glasgow support for the Rangers or Celtic football teams is traditionally along Protestant/ Catholic lines.
However, there probably are other grey areas that may still have to be clarified by future cases. Could a Jewish baker really be obliged to bake a cake iced with a picture of a hand grenade and the words “Free Palestine”? Not necessarily, in our opinion, but it would take too long to go into all the legal points here.
We cannot exclude the possibility, especially if this decision is widely reported, that businesses known to be owned by conservative Christians may even be targeted by people placing orders intended to offend against the owners’ beliefs in the hope of being refused and able to claim compensation for discrimination, or to ‘prove a point’. We doubt this will not be common but there are known cases of e.g. individuals applying for jobs that they do not want, purely in the hope of being refused so they can then threaten to bring a discrimination claim unless they are compensated.
If anyone reading this ever thinks they could be at risk of being drawn into a dispute like this, check with Tim Preston or Louise Nunn at Lightfoots at an early stage. Often we can tell you quite quickly that there is nothing to worry about. However, it is often much easier, and cheaper, to help you avoid getting into problems in the first place, that get you out of a problem afterwards!