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On appeal from: [2016] NICA 39

This appeal considered whether the appellants directly discriminated against a customer, the respondent, 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 1988, by refusing to make a cake decorated with the words ‘Support Gay Marriage’. It also considered whether the relevant provisions of the 2006 regulations and 1988 Order breached the appellants’ rights under the ECHR, arts 9 and/or 10, separately or together with art 14.

The Supreme Court found that the Court of Appeal had erred in refusing to make a reference pursuant to the Attorney General’s notice under paragraph 33 and so granted permission to appeal. This was because, although the appellants had appealed to the Court of Appeal by way of case stated, they were entitled to appeal to the Supreme Court in relation to the 1988 Order because the decision involved a question as to the validity of measures of the Northern Ireland Assembly.

The Supreme Court unanimously allowed the appeal, holding that neither the 2006 Regulations nor the 1988 Order imposes civil liability on the appellants for refusing to express a political opinion contrary to their religious beliefs. The Court considered that the  objection of the appellants was to the message on the cake, not to the respondent’s actual or perceived sexual orientation, and the message was not indissociable from the sexual orientation of the customer, as support for gay marriage was not a proxy for any particular sexual orientation. The Court held that the rights to freedom of thought, conscience and religion (ECHR, art 9) and to freedom of expression (ECHR, art 10) were engaged but that this meant that, whilst the appellants could not refuse to provide their products to the respondent because he was a gay man or because he supported gay marriage, this was different from obliging them to supply a cake iced with a message with which they profoundly disagreed and as justification had not been shown, their refusal was permissible.

For judgment, please download: [2018] UKSC 49
For Court’s Press Summary, please download: Court’s Press Summary
For a non-PDF version of the judgment, please visit: BAILII

To watch the hearing, please visit: Supreme Court Website (1 May 2018 morning session) (1 May 2018 afternoon session) (2 May 2018 morning session) (2 May 2018 afternoon session)