Lee v Ashers Baking Company Ltd & Ors (Northern Ireland)

Factual and Procedural Background

The Appellant operates a family-run bakery with multiple retail outlets and an online service. In May 2014 the Respondent, a volunteer for an LGBT community group, ordered a custom cake bearing the slogan “Support Gay Marriage” along with related imagery. Because the Appellant’s owners hold the religious belief that marriage should be confined to a man and a woman, they cancelled the order, refunded payment, and returned the artwork.

The Respondent, assisted by the Commission, sued in the county court alleging direct and indirect discrimination on grounds of sexual orientation, religious belief, and political opinion. The county court found direct discrimination on all three grounds and awarded £500 damages. On appeal by way of case stated, the Court of Appeal upheld the decision on sexual-orientation discrimination and deemed it unnecessary to decide the other grounds.

The Appellant sought permission to appeal to the Supreme Court. Separately, the Attorney General intervened, challenging the validity of the relevant Northern Ireland discrimination provisions and triggering devolution references. Questions therefore arose both as to substantive liability and the Supreme Court’s jurisdiction to entertain the matter. The Supreme Court granted permission, accepted jurisdiction, and heard the appeal together with the Attorney General’s references.

Legal Issues Presented

1. Whether refusing to supply a cake iced with the message “Support Gay Marriage” constituted direct discrimination on grounds of sexual orientation under the Equality Act (Sexual Orientation) Regulations (Northern Ireland) 2006.
2. Whether the refusal constituted direct discrimination on grounds of religious belief or political opinion under the Fair Employment and Treatment (Northern Ireland) Order 1998.
3. If prima facie discrimination existed, whether Articles 9 and 10 of the European Convention on Human Rights (freedom of religion and expression) required the legislation to be read down or disapplied.
4. Whether the Supreme Court had appellate jurisdiction notwithstanding statutory “finality” clauses, and whether the Attorney General’s devolution references were properly before the Court.

Arguments of the Parties

Appellant’s Arguments

• The objection was to the message, not the messenger; any customer requesting that slogan would have been refused.
• Support for same-sex marriage is not indissociable from sexual orientation; people of any orientation may support or oppose it.
• No less-favourable treatment occurred because of the Respondent’s political opinion; the refusal related solely to compelled expression.
• Compelling the bakery to produce the cake would violate Articles 9 and 10 ECHR by forcing it to manifest beliefs it does not hold.
• The statutory provisions, properly interpreted compatibly with the Convention, do not impose liability for refusing to express a particular message.

Respondent’s Arguments

• The refusal amounted to associative direct discrimination: the slogan is inseparable from the protected characteristic of sexual orientation.
• A correct comparator would be a customer of different orientation seeking a cake supporting opposite-sex marriage, who would have been served.
• The bakery advertised a “Build-a-Cake” service without restrictions; cancelling after payment was unfavourable treatment.
• Freedom of religion and expression do not justify a commercial enterprise denying services that legislation requires it to supply.

Table of Precedents Cited

Court's Reasoning and Analysis

1. Jurisdiction. Despite statutory wording that decisions on a case stated are “final,” the Court held it possessed jurisdiction because the appeal involved questions about the validity of Northern Ireland legislation and because the Court of Appeal had erred in refusing the Attorney General’s paragraph 33 reference.

2. Sexual-Orientation Claim. Direct discrimination requires differential treatment because of sexual orientation. The bakery would have refused any customer requesting the slogan, and would have served the Respondent with a cake lacking the slogan. Support for same-sex marriage is not a proxy for being gay; therefore no direct discrimination occurred. Indirect discrimination was not alleged on the facts.

3. Political-Opinion Claim. The less-favourable treatment must be “on grounds of” the customer’s political opinion, not the supplier’s. The refusal targeted the message, not the Respondent’s opinion; any customer requesting it would have been refused. Even if discrimination were arguable, compelling the bakery to produce the slogan would infringe Articles 9 and 10, and the legislation must be interpreted compatibly so as not to impose such liability.

4. Convention Rights. Articles 9 and 10 protect both freedom of religion and the right not to be forced to express beliefs one does not hold. Imposing civil liability for declining to ice the slogan would amount to compelled speech and was not shown to be necessary in a democratic society. Accordingly, the statutes were either inapplicable on these facts or had to be read down.

5. Attorney General’s References. The Court of Appeal erred in refusing to make the requested reference; had it done so, the Supreme Court’s answers would have altered the outcome. This procedural defect further justified allowing the appeal.

Holding and Implications

APPEAL ALLOWED. The refusal to supply a cake bearing the slogan “Support Gay Marriage” did not constitute unlawful discrimination on any ground, and imposing liability would violate Articles 9 and 10 ECHR.

Implications: Businesses remain prohibited from discriminating against customers because of protected characteristics. However, equality legislation does not oblige a supplier to create or promote a message with which it profoundly disagrees. The decision clarifies the boundary between protection from discrimination and protection against compelled speech, with potential relevance across the United Kingdom.