It must be a rare moment in legal history, when cakes are at the centre of Supreme Court Knights_S_146668decisions in the same year on both sides of the pond. In June this year the US Supreme Court handed down judgment in Masterpiece Cakeshop v Colorado Civil Rights Commission ruling 7:2 in favour of a Colorado baker who refused to make a bespoke wedding cake for a gay couple for religious reasons. Over here the UK Supreme Court gave judgment in Lee v Ashers in October following a hearing in May this year also deciding in favour of the baker. The legal framework is different in the US, there being no equivalent in legislation there of the anti-discrimination provisions relating to goods and services in force in Northern Ireland and England and Wales. But the ruling is not without interest or relevance here given the focus in both decisions on freedom of expression and not least given the UK Supreme Court’s own reference to the US case.

The substantive question in the case before the UK Supreme Court was whether it is unlawful discrimination either on grounds of sexual orientation, or on grounds of religious belief or political opinion, for a bakery to refuse to supply a cake iced with the message “support gay marriage” because of the sincere religious belief of its owners that gay marriage is inconsistent with Biblical teaching and therefore unacceptable to God. Both instances of the Northern Ireland courts below had found there was direct discrimination (the district judge on both grounds, and the Court of Appeal on grounds of sexual orientation).

Significantly the Court below did not find that the bakery refused to fulfill the order because of Mr Lee’s actual or perceived sexual orientation, as opposed to taking issue with the proposed message on the cake. Indeed anyone requesting that message would have been refused regardless of their beliefs or sexual orientation. As such there was said to be no identity between the criterion (support for gay marriage) and the sexual orientation of the customer. As Baroness Hale giving the leading judgment (and with whom all other Justices agreed) said at [25]: “Support for gay marriage is not a proxy for any particular sexual orientation”.

In relation to discrimination on grounds of sexual orientation it was argued on behalf of Mr Lee that this was a case of associative discrimination and that the reason for refusing the cake was that Mr Lee was likely to associate with the gay community of which the family behind the bakery disapproved. There was no evidence, however, that the bakery had discriminated on that or any other prohibited ground in the past and indeed they both employed and served gay people. As such the objection was to the message and not to any person. Baroness Hale specifically alerted at [35] to the very real problem of discrimination against gay people before stating that this was not happened in the present case.

The argument relating to discrimination based on religious beliefs was dismissed because it was not Mr Lee’s religious beliefs that were affected as opposed to the alleged discriminators. Since the legislation aimed to ensure a person in Mr Lee’s position was not less favourably treated on grounds of his religious beliefs, that was not apposite.

The more complex issue concerned whether Mr Lee had been discriminated on grounds of his political opinion and here the Court accepted that it could be argued that the man and the message were indissociable without actually deciding the issue (albeit at [56] making it clear that there were doubts about this). As such it was necessary to look at the ECHR rights.  In this context the Court drew on Strasbourg authority relating to protection against manifesting a belief that an individual does not hold (ECHR, arts 9 and 10). The Court also drew on the US jurisprudence, which is far more developed than in England and Wales, in terms of protection against being required to speak: see [53]. Here, as in the US case, the Court looked at it from the perspective of the baker being required to produce a cake and thus ‘express’ a message with which they deeply disagreed.

It was accepted by the Court that the bakery could not refuse to provide a cake or any product because Mr Lee was gay or because he supported gay marriage. But it was said that this “does not amount to a justification for something completely different – obliging them to supply a cake iced with a message with which they profoundly disagreed”. This is essentially the nub of the decision but unfortunately the Court provided little by way of analysis for reliance on ECHR, arts 9 and 10.

The Court considered the US case as a postscript albeit distancing itself from the decision on the facts on the basis that there was no specific message on the cake. As such they referred first to the dissent of Justices Ginsburg and Sotomayer who drew a clear distinction between an objection to the message and objection to the customer, finding that this was a case of the latter in fact. However, the majority accepted that the baker saw creating a wedding cake as an expressive statement per se. The line drawn in the Masterpiece case was identified as the clear distinction between refusing to produce a cake conveying a particularly message and refusing to produce a cake for the particular customer because of that customer’s characteristics. Whilst the UK Supreme Court thus do not appear to agree with the application of the law to the facts in the US case, there is common ground as regards the line.

Although there is a clear argument by the Court, the judgment is not without some difficulty. First, it would have been useful for the Court to analyse in greater depth why ECHR, arts 9 and 10 should have been a trump for the statutory non-discrimination provisions on the facts. The decision apparently gives little weight to the starting point of an assumed (in this case) finding of discrimination. Nor did the Court really grapple with the issue of whether ‘expression’ is really engaged in a service provider who is simply being asked to put a lawful message on its product. It is unclear, for example, why a service provider such as a printer or caterer should necessarily have a legally justifiable objection to a lawful message which it is simply asked to place as part of its service for a customer. Why should the reproduction of that message be regarded as the service provider’s own ‘expression’ or if it is so regarded why should it not be perceived as a case of justified interference on the grounds of the very significant public and individual interests at stake in terms of non-discrimination? On the basis of this decision a printer who disagrees with the minority political or religious views expressed in a pamphlet it is asked to print, or a designer of a set who is asked to place words on the set could arguably refuse to provide a service. This despite the fact that the very basis of the anti-discrimination provisions in the law was to protect those who are frequently marginalized in society.

Secondly, the scope of the case’s application is unclear. Although the Court were at pains to say that it was all about the message, what amounts to a message? What about a wedding cake with no words but an image of two women holding hands and two female names? Would the cake maker be able to invoke their ECHR, arts 9 and 10 rights in exactly the same way on the basis of a pictoral message? What about race? I attended a seminar last year in the US at which the attorneys representing both parties in the Masterpiece Cakeshop litigation spoke pending judgment from the Supreme Court being handed down. The issue of refusing to sell a cake with an image of a black and white couple on the basis of a baker’s sincerely held religious belief (however erroneous) that inter-racial relationships were wrong was discussed. All the parties agreed that this was a completely different issue because it concerned race (a far more sensitive issue that even religion in the US) and that such a refusal would never be legally justifiable. However, on the basis of the Supreme Court decision here it would appear that a refusal by a baker holding relevant contrary beliefs to bake bespoke cakes with the messages “in support of inter-racial relationships”, or “in support of Judaism” or “Happy Halloween” would in fact all be treated in the same way as Mr Lee’s case.

Thirdly, on the facts of the case Mr Lee was able to get a cake made elsewhere and did so in time. However, what about service providers who effectively have monopolies, or minority views that are widely opposed in a particular area? Would it have made any difference if Mr Lee had been refused a cake by every baker in Northern Ireland? On the face of the decision it would not have done so and yet this surely is a factor to be considered under the rubric of ECHR, arts 9 and 10.

We live in a pluralist society that is more tolerant and respectful of difference than many. Yet we can expect more disagreement and litigation around weddings, cakes, and many other services going forward.