“Gay cake”– confirmation from the Court of Appeal

By way of a brief update on the "gay cake" case, the Court of Appeal of Northern Ireland this week upheld the County Court's decision that the bakery had directly discriminated against Mr Lee by association on the ground of sexual orientation.

As regular readers of this blog will know (please see our previous articles here and here) this is not an employment law case but it has headline friendly facts with wide scope for puns (most national newspapers as well as Farrers are guilty of succumbing to this temptation). More importantly for our readers, it provides useful guidance on potential conflicts between protected characteristics.

The Court found that the bakery's refusal to cancel and refund an order for a cake ordered by Mr Lee, a gay man, iced with a graphic of Bert and Ernie (which is the logo of QueerSpace) and a slogan which read "Support Gay Marriage" was directly discriminatory. This was because the message was to the benefit of gay or bisexual people and the Court found that the only reason for the refusal was the use of the work "gay"; a cake with "support marriage" would not have been refused.

The Court of Appeal sensibly pointed out that businesses cannot and should not be able to provide or refuse services based on protected characteristics, including sexual orientation, and this includes deciding what cakes to sell to whom. In relation to using their own religious convictions as a defence or as a conflicting right, the court pointed out that the bakery owners were not prevented from manifesting their own religious beliefs; providing an iced cake does not mean that they have to agree with the message written on it. A seasonally appropriate example has been given by commentators that icing a Halloween cake does not mean a bakery supports witchcraft.

Please do review our previous blogs on this issue which discuss the apparent conflict between protected categories in more detail.