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:
-
Prescribed by law; and
-
Intended to achieve a legitimate objective; and
-
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.