A bakery in Northern Ireland refused to supply a cake iced with the message “support gay marriage” because of the religious beliefs of its owners. The Supreme Court held this was not discrimination by association because the objection was to the message, not to any particular person or persons.
Supreme Court, 2018, www.bailii.org/uk/cases/UKSC/2018/49.html
Facts
A bakery in Northern Ireland refused to supply a cake iced with the message “support gay marriage” because of the sincere religious belief of its owners that gay marriage is inconsistent with Biblical teaching and therefore unacceptable to God.
The County Court held this was direct discrimination on grounds of sexual orientation.
Held by the Supreme Court: the County Court decision should be overturned. This was not unlawful discrimination.
An appeal to the European Court of Human Rights in Strasbourg failed (below) because the claimant had not raised his Convention rights with the UK courts.
Supreme Court decision
If this was unlawful it would be as discrimination by association, but it was not. The bakery’s objection was not to serving that customer, but to promoting the message on the cake. The Supreme Court said:
“In a nutshell, the objection was to the message and not to any particular person or persons.”
The archetypical example of discrimination by association is the Coleman case which held that an employer can be liable for direct discrimination and harassment of an employee because of the disability of the employee’s child. It does not have to be the employee who had the disability. However the Supreme Court pointed out that in Coleman there was a specific identified person, the son, whose disability was the reason for the less favourable treatment. In English v Thomas Sanderson (see Harassment of employees>Perceived disability or no disability) a majority of the Court of Appeal had held that being taunted as if you were gay was unlawful harassment even it you weren’t gay, though there was a “powerful dissenting judgment” to the effect that harassment is perpetrated on grounds of sexual orientation only where some person or person’s actual, perceived, or assumed sexual orientation gives rise to it. Also it was “of interest”, said the Supreme Court, that Explanatory Notes to equivalent regulations in Great Britain stated that direct discrimination is “when a person treats another person less favourably on the grounds of his/her sexual orientation, or what is believed to be his/her sexual orientation, or the sexual orientation/perceived sexual orientation of another person with whom they associate”.
This was very far from saying that, because the reason for the less favourable treatment has something to do with the sexual orientation of some people, the less favourable treatment is “on grounds of” sexual orientation. The present case was not one of discrimination by association: as stated above, the objection was to the message and not to any particular person or persons.
The court said it would be unwise in the context of this particular case to attempt to define the closeness of the association which justifies a finding of discrimination by association.
European Court of Human Rights, Strasbourg
The claimant appealed to the European Court in Strasbourg, arguing breach of the European Convention of Human Rights. However the European Court refused to hear the appeal: Lee v UK (hudoc.echr.coe.int), 2022. It said the claimant had not expressly invoked his Convention rights in the UK courts (though see tweet below), and therefore had not exhausted domestic remedies.
- News article: ECtHR declares appeal in ‘gay cake case’ inadmissible (lawgazette.co.uk), January 2022
- Robin Allen QC reflects on impact of the ‘Gay Cake Case’ ECtHR decision (archive of cloisters.com), March 2022.
My comment
The case was on Northern Ireland legislation but (so far as discussed on this page) it should apply equally in the rest of the UK, including as regards disability discrimination.
See generally Discrimination by association.
