As a lover of both cake and equality law, I am delighted that we now have a case dealing with both. The facts of the now famous “gay cake row” in Northern Ireland are as follows: the Claimant is a gay man and is associated with QueerSpace, an LGBT rights organisation in Northern Ireland. He decided to order a cake for an event celebrating anti-homophobia week. He placed an order at a local, family-run bakery for a cake iced with a graphic of Bert and Ernie, the logo of QueerSpace and a slogan which read “Support Gay Marriage”. The lady who took the order for the cake (one of the owners of the bakery and a Christian) did not want to make the cake because the slogan conflicted with her religious beliefs. Having taken the order, she discussed with her husband and son how to handle the matter. They decided to cancel the order and refund the Claimant’s money on the basis that they were a Christian business. The Claimant was disappointed and inconvenienced but managed to get his cake elsewhere.
The Claimant brought a claim for sexual orientation discrimination and/or political opinion or religious belief discrimination. The case came before the County Court in Northern Ireland and the Defendants argued that they could not have been discriminating against the Claimant on grounds of sexual orientation because they did not know that the Claimant was gay and this played no part in their decision to cancel the order. Not only did the Court find that the Defendants did know or perceive the Claimant to be gay, it also found that this was not the correct test. The test in the Northern Irish legislation is the same as much of English discrimination law before the Equality Act 2010 “because of” test was introduced, in that it prohibits discrimination “on grounds of” a particular protected characteristic. Here, the slogan “Support Same Sex Marriage” was inextricably linked to sexual orientation and the political campaign supporting gay marriage. Therefore, as this slogan was according to the Defendants the motivator for the order being cancelled, this was done “on grounds of” sexual orientation and political belief and was discriminatory. There was no justification to be found in human rights legislation.
These sorts of cases, where one protected characteristic has to be balanced against another, are in my view fascinating. In England, we have seen MacFarlane v Relate Avon (where the psychosexual counsellor did not want to treat same sex couples) and Ladele v Islington (where the Christian registrar did not want to conduct civil partnership ceremonies). These are undoubtedly difficult issues for the courts and society to grapple with but the position in law would seem to be fairly straightforward in the UK at the moment: in law, discrimination against a group with one protected characteristic is not going to be made acceptable by praying aid another.
Since the case above was brought last summer, the DUP have launched a private member’s bill proposing inclusion of a “conscience clause” in equality legislation with the support of the Catholic Church. These provisions would operate to allow those with religious faith not to take certain actions which conflicted with their faith. Personally, I find it difficult to see how the introduction of such measures would not result in widespread discrimination… maybe I will just stick to cake!