19 May 2015

Presiding District Judge Brownlie today gave judgment in favour of Gareth Lee and found that Ashers Bakery unlawfully discriminated against him in refusing to accept his order for a cake bearing the caption “Support Gay Marriage”.

The Court heard that Gareth Lee [“the plaintiff”] is a gay man who is associated with an organisation called QueerSpace which seeks to increase visibility of the Lesbian, Gay and Bisexual and Transgendered community in a positive manner. He was planning to attend a private event on Friday 17 May 2014 to mark the end of the Northern Ireland anti-homophobia week and the fact that the NI Assembly vote on the introduction of legislation enabling same sex marriage had been rejected by a narrower margin than on previous occasions, marking political momentum. He decided to buy a cake for the event and placed an order with Ashers Bakery (“the 1st defendant”). On 9 May 2014, he provided the bakery with an A4 sheet with a picture of “Bert and Ernie”, the logo of QueerSpace and the caption “Support Gay Marriage”. On 12 May, he received a phone call from Ashers indicating that the order could not be fulfilled as they are a Christian business and, in hindsight, should not have taken the order. The bakery apologised and arranged for a refund.

The plaintiff challenged the decision claiming that he had been discriminated against contrary to the provisions of the Equality Act (Sexual Orientation) Regulations (NI) 2006 (the 2006 Regulations”) and/or the Fair Employment and Treatment (NI) Order 1988 (“the 1998 Order”). The issues for the court to consider were whether there had been any direct or indirect discrimination on the grounds of sexual orientation, political opinion or religious belief and if so, whether the relevant provisions of the 2006 Regulations or the 1998 Order should be read down so as to take account of the defendants’ protected rights to manifest their religious belief in accordance with Article 9 of the European Convention on Human Rights (“ECHR”) or their freedom of non-expression under Article 10 ECHR.

The Equality Act (Sexual Orientation) Regulations (NI) 2006

The Court was told that prior to the making of the 2006 Regulations, the Office of the First Minister and deputy First Minister conducted a consultation as to the content of the proposed regulations and in response to the consultation said that “where businesses are open to the public on a commercial basis, then they have to accept the public as it is constituted. These Regulations do not prohibit people from turning down business from any source, but they do protect people from having their sexual orientation used as the reason for tuning the business down”.

Judge Brownlie commented:

“The defendants are not a religious organisation; they are conducting a business for profit notwithstanding their genuine religious beliefs and in accordance with Regulation 16(2) are not therefor exempted by the Regulations. The defendants argue that the Regulations only protect sexual orientation and not sexual conduct. I prefer the plaintiff’s submission that same-sex marriage is or should be regarded as a union between persons having a sexual orientation and that if a person refused to provide a service on that ground then they were discriminating on grounds of sexual orientation.”

Judge Brownlie found, on the evidence before her, that the defendants did have the knowledge or perception that the plaintiff was gay and/or associated with others who are gay. She said the reasons for her finding were that the defendants must have known that the plaintiff supported gay marriage and/or associated with others who supported gay marriage as this was a cake for a special event the plaintiff was attending; it was known to the Karen McArthur (“the 3rd defendant”) that the plaintiff was a member of a small volunteer group; he wanted his own graphics on the cake; those graphics included “support gay marriage” together with a reference to “QueerSpace” and the 3rd defendant was aware of the ongoing debate on same-sex marriage; and it was clear from the 3rd defendant’s evidence that when she discussed the issue with Colin McArthur (“the 2nd defendant”), she mentioned that there may be litigation. The judge said it was also significant that the 2nd defendant would have been prepared to fulfil the order but after discussing it with the 3nd defendant and “wrestling with his heart and mind” he changed his view. She said it must have been abundantly clear during those discussions that the plaintiff supported gay marriage and that in all the circumstances the 2nd defendant must either consciously or unconsciously have had the knowledge or perception that the plaintiff was gay and/or was associated with others who are gay.

Judge Brownlie said she did not accept the defendants’ submissions that what the plaintiff wanted them to do would require them to promote and support gay marriage which is contrary to their deeply held religious beliefs:

“Much as I acknowledge fully their religious belief is that gay marriage is sinful, they are in a business supplying services to all, however constituted. The law requires them to do just that, subject to the graphic being lawful and not contrary to the terms and conditions of the company.”

Judge Brownlie concluded that the defendants had unlawfully discriminated against the plaintiff on the ground of sexual orientation contrary to the 2006 Regulations:

“My finding is that the defendants cancelled this order as they oppose same sex marriage for the reason that they regard it as sinful and contrary to the genuinely held religious beliefs. Same sex marriage is inextricably linked to sexual relations between same sex couples which is a union of persons having a particular sexual orientation. The plaintiff did not share the particular religious and political opinion which confines marriage to heterosexual orientation. The defendants are not a religious organisation; they are conducting a business for profit and, notwithstanding their genuine religious beliefs, there are no exceptions available under the 2006 Regulations which apply to this case and the Legislature, after appropriate consultation and consideration, has determined what the law should be.”

Judge Brownlie commented that the purpose of the Regulations was to secure that people of homosexual orientation are treated equally with people of heterosexual orientation by those in the business of supplying goods, facilities and services. She said the Assembly chose not to incorporate a conscience clause well aware of the objections and by doing so specifically excluded Christian businesses from the exemption at Regulation 16.

The Fair Employment and Treatment (NI) Order 1998

The purpose of the 1998 Order is to prevent discrimination against a person on the grounds of their religious belief or political opinion. Judge Brownlie firstly considered whether the plaintiff’s support of gay marriage is, in fact and law, a political opinion held by the plaintiff. She held that it was on the basis of the evidence before her; in the context of the political debate on same sex marriage which was ongoing in Northern Ireland; and on the fact that the plaintiff was actively involved in supporting this process both as an individual and also as part of the group Queer Space (although the proceedings are on behalf of the plaintiff only).

The defendants submitted that there was no reason for them to have any knowledge or perception of the plaintiff’s political opinion and these factors played no part in their actions. They also submitted that what the plaintiff wanted them to do would require them to promote and support a campaign for a change in the law to enable same sex marriage. Judge Brownlie did not accept these submissions on the evidence before her for the same reasons as she did not accept the submissions when considering whether the plaintiff had been discriminated against under the 2006 Regulations.

The judge said that the crucial question in a case of any alleged discrimination is to ask why the claimant received less favourable treatment: “Was it on grounds of religious belief and/or political opinion? Or was it for some other reason? If it is on the grounds of religious belief and/or political opinion, direct discrimination is established. The reason why the discriminator acted on those grounds is irrelevant.”

Judge Brownlie said she had no doubt that if the plaintiff had ordered a cake with the words “support marriage” or “support heterosexual marriage” it would have been provided: “It is the word gay to which the 2nd and 3rd defendants too exception, the connotation of gay marriage which the defendants regard as sinful”.

The judge found that the defendants had directly discriminated against the plaintiff contrary to the 1998 Order. She said the defendants had disagreed with the religious and political belief held by the plaintiff with regard to a change in the law to permit gay marriage and, accordingly, by their refusal to provide the services sought, treated the plaintiff less favourably contrary to the law: “I am satisfied that the defendants would have completed the order [if the plaintiff had chosen graphics which said “support heterosexual marriage” or “support marriage”] and would have had every right to do so. It is for the reason that the defendants objected to the word “gay” as they are totally opposed to same sex marriage which they regard as sinful that they refused the order”.

The defendants also sought to make the case that the 1998 Order protects only the holding of political opinions and not the manifestation of those opinions. Judge Brownlie commented that the holding and/or manifestation of an opinion are so interlinked that it is illogical to suggest that they can be separated and as such they are protected under the 1998 Order which protects against less favourable treatment on grounds of religious belief or political opinion.

Articles 9 and 10 of the European Convention on Human Rights

Article 9 (2) of the ECHR provides that “freedom to manifest one’s religion or beliefs shall be subject only to such limitations as are prescribed by law and are necessary in a democratic society in the interests of public safety, for the protection of public order, health or morals, or for the protection of the rights and freedoms of others”. Article 10 provides that “everyone has the right to freedom of expression” and Article 10(2) states that “the exercise of these freedoms, since it carries with it duties and responsibilities, may be subject to such formalities, conditions, restrictions or penalties as are prescribed by law and are necessary in a democratic society”.

Judge Brownlie said that Article 9(2) seeks to ensure that the limitations placed upon an individual’s protected rights will only be applied if they are:

  1. Prescribed by law; and
  2. Intended to achieve a legitimate objective; and
  3. Necessary in a democratic society.

Judge Brownlie said that the interference with the Article 9 rights in this case was clearly prescribed law in the 2006 Regulations. She also said that the provision of goods and services to the public must be in accordance with the law otherwise it would not meet the legitimate aim.

She then considered whether it was necessary in a democratic society. Judge Brownlie referred to case law on this topic and said:

“The law in Northern Ireland prohibits the defendants from acting as they did and, in relation to the requirement to balance competing interests, she found that the extent to which the 2006 Regulations and/or the 1998 Order limit the manifestation of the defendants’ religious beliefs, those limitations are necessary in a democratic society and are a proportionate means of achieving the legitimate aim which is the protection of the rights and freedoms of the plaintiff. I am satisfied that this does not give rise to any incompatibility between the rights of the defendants under Article 9 and the rights of the plaintiff under the 2006 Regulations and/or the 1998 Order. To do otherwise would be to allow a religious belief to dictate what the law is. That is a matter for the Assembly.”

Judge Brownlie further commented:

“The defendants are entitled to continue to hold their genuine and deeply held religious beliefs and to manifest them but, in accordance with the law, not to manifest them in the commercial sphere if it is contrary to the rights of others.”

The judge noted that case law of the European Court of Human Rights has long recognised that a limited company, given the fact that it concerns a profit-making corporate body, cannot invoke Article 9 rights.

The defendants also claimed that they had a right under Article 10 of the ECHR not to be compelled to express or commit them to a viewpoint. Judge Brownlie held that what the defendants were asked to do did not require them to support, promote or endorse any viewpoint.

Judge Brownlie gave judgment in favour of the plaintiff and found that Ashers were liable to him for unlawful discrimination contrary to the provisions of the 2006 Regulations and the 1998 Order.