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Discrimination on grounds of sexual orientation

Ashers Bakery, a Christian-run family business operated as a proprietary company in Northern Ireland, was recently ordered to pay damages after having lost a case in which a customer alleged the Bakery had discriminated against him on the basis of his sexual orientation and his political views in support of gay marriage.

In May, 2014, to mark an international event against homophobia, the plaintiff customer Gareth Lee ordered a cake from Ashers Bakery with the slogan “Support Gay Marriage” accompanied by the Sesame Street puppets Bert and Ernie. The Bakery initially accepted the order but subsequently apologised, cancelled the order, and refunded Mr Lee’s money citing that “Ashers Bakery is a Christian business”.  Mr Lee claimed that he had been discriminated against contrary to sexual orientation equality and fair treatment laws, arguing that his request did not oblige the Bakery to agree or support his views relating to gay marriage, but simply to perform the service they had advertised.

In denying these allegations of unlawful discrimination, the third defendant Mrs McArthur stated “If we provided the cake in these terms, I would feel that I was betraying my faith and failing to live in accordance with what God expects of me” and emphasised that the conduct was neither related to Mr Lee’s sexual orientation nor his political opinion.

In finding for the plaintiff, DJ Brownlie considered the parties’ competing rights under the European Convention of Human Rights and noted that both of the following rights are highly protected:

  •  the right to manifest one’s religion without unjustified limitation, and,
  •  the right to respect for one’s private life without unjust discrimination on the grounds of sexual orientation.

Her Honour found that while Northern Ireland’s equality and fair treatment laws reflect the European Convention and protect both rights, the limitations placed on the manifestation of the defendant’s religious beliefs are “a proportionate means of achieving the legitimate aim” of the legislation.

The defendant further argued that a company, like individuals, has the right to manifest its religious views without unjustified limitation and the right not to be compelled to express a certain viewpoint.

In dismissing this argument the judge cited the European Human Rights Commission’s holding that while a church body or an association with religious and philosophical objects is capable of possessing and exercising those rights, a limited liability company with a profit-making object is not capable of that and therefore cannot protect itself by invoking those rights.

Authors: Julia Harrison & Martin Slattery

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