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Last week, in Lee v Ashers Baking Company Ltd & Ors [2018] UKSC 49, the Supremegay-cake Court upheld a baker’s right to refuse to make a cake expressing a message of support for same-sex marriage, rejecting claims that the refusal constituted discrimination based on the customer’s sexual orientation and political views.

Limited implications for equality law

Although it was no victory for equality law, Ashers is bound by its facts and should not prevent people from challenging denials of services based on their sexual orientation, regardless of the religious or political motivations of the service provider.

In Bull v Hall [2013] UKSC 73, the Supreme Court rejected an attempt by the owners of a bed-and-breakfast to use their religious freedom as a justification for refusing a room to a gay couple. The only logical way to reconcile these cases is to confine Ashers to its facts. In Ashers, the Court concluded that the baker did not deny Mr Lee his cake because he is gay (or because he associates with LGBT+ people) but rather because the cake he wanted bore a message the baker did not wish to print. In the Court’s view, there’s no need to distinguish Bull v Hall – indeed, the Court does not once reference the case – because this simply isn’t a case of discrimination based on sexual orientation.

The Court also tightens up the doctrine of “indissociability,” making clear that it applies only when a criterion other than the protected characteristic is being used as a “proxy” for that characteristic, and not merely when there is some relationship between the two.  Support for same-sex marriage runs across the boundaries of sexual orientation, and therefore, in the court’s view, could not be a proxy for sexual orientation. On the facts of Ashers, the victim was “the message not the man” – or any proxy for the man.

Are those facts wrong? Probably. One has to squint rather vigorously to conjure a credible image of a baker who emphatically refuses to make cakes that support same-sex marriage but whose record of service to LGBT+ people is unimpeachable and bears no hostility toward a gay customer asking for a cake that explicitly references LGBT+ rights. But the Supreme Court had only the evidence in the record and the factual findings of the lower courts that it was in no position to question.

As painful as it may be for many of us who sense that justice was not served in Ashers, we should probably indulge its artifice. Ensuring that the case is confined to its idiosyncratic facts is in the long-term interest ensuring that Bull v Hall continues the stand for the principle that requiring business owners not to discriminate against LGBT+ is necessary in a democratic society, regardless of business owners’ religious or political beliefs to the contrary. In future cases, lawyers will have to be careful to ensure there is evidence that a denial of goods or services was related to a person’s sexual orientation and not purely to any message involved in the goods or services. But they should not fear that the notion of a “conscience clause” has been newly read into equalities legislation.

A muddle on political discrimination

If that were all there were to Ashers, it might have ended up a mere footnote in the equalities law textbooks. But Northern Ireland has a law – the Fair Employment and Treatment (Northern Ireland) Order 1998 (“FETO”) – that prohibits discrimination on the grounds of religious belief or political opinion.

Having decided that the bakery rejected Mr Lee’s custom not because he was gay but because of the political opinion expressed by the cake he ordered, you would think the Court had nowhere to run on the political discrimination claim. But run they did – straight into a briar patch.

The Court decided that there probably was political discrimination against Mr Lee because the cake’s message was “indissociable” from a political opinion favouring gay marriage. But it found against Mr Lee nonetheless, because to lose this case would infringe the bakers’ art 9 and 10 rights to freedom of religion, conscience and speech.

The Court’s fundamental concern was that “the bakery was required, on pain of liability in damages, to supply a product which actively promoted the cause, a cause in which many believe, but a cause in which the owners most definitely and sincerely did not.” That’s true. But so were the bed-and-breakfast owners in Bull v Hall required, on pain of liability in damages, to supply a service which actively supported an intimate relationship which the owners most definitely and sincerely thought was a sin.

Why should it infringe the bakers’ rights to lose this case on political discrimination grounds, but not infringe the B&B owners’ rights to lose Bull v Hall on sexual orientation discrimination grounds? The answer lies in the different value society places on non-discrimination based on sexual orientation and non-discrimination based on political viewpoint.

Let’s take a step back: In general, we don’t require people to do business with people they don’t want to do business with. Equality law creates an exception to this rule, because of the value of protecting the dignity of LGBT+ people (and other protected groups) trumps the default freedom of people to do what they want. And, following Bull v Hall, it even trumps that freedom when the objecting parties invoke their freedom of religion and conscience. There is a conflict of rights, resolved in favour of equality.

In the context of political discrimination, Ashers resolves the conflict of rights the other way, in favour of freedom of religion and conscience. Unfortunately, the Court doesn’t spend any time explaining why it did that. There is a great deal of discussion of the importance of freedom of conscience, but no discussion whatsoever of the countervailing values protected by a prohibition on political discrimination, or why the Court deems them of lesser weight than the values protected by equalities legislation.

You could read the Court’s effort to import the American “compelled speech” doctrine as its attempt to confine the scope of its ruling. The judgment characterises forcing the bakers to fulfil the cake order as “compelling” them to promote or endorse a “message.”  But the Court couldn’t possibly be saying that messages on cakes are always expressions of their baker’s conscience. Would we ever assume that a baker who ices “Happy 13th Birthday” on a cake has any feeling one way or the other about the pre-teen in question? Or, as commentators have been fond of noting, does a person have to endorse Manchester United to bake a cake celebrating the team’s success?

Of course not. Thinking of this as a “compelled speech” case misunderstands the doctrine. Nonetheless, as Lady Hale points out, this cake’s message did implicate these bakers’ consciences. Not because decorated cakes bear “messages,” but because Mr Lee’s political discrimination claim inherently turned this particular cake purchase into a political conflict between a supporter of gay marriage and an opponent of gay marriage.

Given that political discrimination claims will always involve a clash between two parties’ respective conscience, it’s hard to tell what is left of FETO after this case. The Court tells us the law has to be read to avoid ruling in Mr Lee’s favour, but it doesn’t say anything else how it should be read in other cases, let alone how it could be applied to avoid running up against the robust interpretation of arts 9 and 10 offered by this judgment.

Corey Stoughton is the Acting Director of Liberty.  This post is written in her personal capacity.