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Landmark Reversal of “Gay Cake” Judgment in UK Supreme Court

Mark Hill QC

Mark Hill QC

This morning the Supreme Court of the United Kingdom delivered its long-awaited judgment in Lee v Ashers Baking Co Ltd [2018] UKSC 49. The case had already made history in that it marked the first occasion that the Court had sat to hear oral argument in Belfast. The issues can be shortly stated, although the ramifications of the decision for the competing rights and interests of sexual orientation, freedom of belief and “compelled speech” may take some working out in the months and years ahead.

In short, the Court was being asked to consider whether the appellant bakery directly discriminated against the respondent customer on the grounds of sexual orientation, contrary to the Equality Act (Sexual Orientation) Regulations (NI) 2006 and religious and political belief, contrary to the Fair Employment and treatment (NI) Order 1998 by refusing to make a cake decorated with the words "Support Gay Marriage".

The customer was a gay man associated with a volunteer organisation for the lesbian, gay, bisexual and transgender community in Northern Ireland. There had been political debate in Northern Ireland regarding the introduction of legislation enabling same-sex marriage. He placed an order for a cake with the bakery with the images of the characters Bert and Ernie iced on it together with the words "Support Gay Marriage". The bakers declined to fulfill the order. The customer, supported by the Northern Ireland Human Rights Commission, brought a discrimination claim which succeeded in both the County Court and Northern Ireland Court of Appeal, by way of case stated.

Reversing the decision of the lower courts, the Supreme Court held unanimously that there had been no discrimination on grounds of sexual orientation nor on grounds of religious belief or political opinion. To the contrary the principle of freedom of speech carries with it a right not to be compelled to say something with which one profoundly disagrees. The bakers’ objection was to being required to promote the message on the cake. The less favourable treatment was afforded to the message not to the customer.

Lady Hale, giving the unanimous judgment of the Court, concluded:

“The bakery would have refused to supply this particular cake to anyone, whatever their personal characteristics. So there was no discrimination on grounds of sexual orientation. If and to the extent that there was discrimination on grounds of political opinion, no justification has been shown for the compelled speech which would be entailed for imposing civil liability for refusing to fulfil the order.”

The full judgment can be found here:

And the Court’s press summary here: