Judgments from the Supreme Court are awaited on both sides of the pond in relation to 20050607-sam-knights 112the lawfulness of bakers with religiously based views opposed to same-sex marriage refusing to sell bespoke cakes with a message embracing the same. Whilst there are differences in the legal framework and context and the focus of the arguments, the factual basis of the claims are very similar.

In May this year the Supreme Court heard an appeal from the Northern Ireland Court of Appeal. The Appellants are a bakery and its husband and wife owners are Christians who do not agree with same-sex marriage as being contrary to their religious faith. The Respondent is a gay man associated with an organization called QueerSpace, a volunteer organization for the LGBT community in Northern Ireland. He placed an order for a cake with the bakery with the words “Support Gay Marriage” printed on it. He was subsequently told the order could not be fulfilled as the bakery was a Christian business and given a refund. He secured a similar cake from another bakery in time for the event it was intended for and brought a discrimination claim against the Appellants which succeeded in the County Court and Court of Appeal. The issues before the Supreme Court are (1) whether the Appellants directly discriminated against 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 1998, and (2) whether the relevant provisions of those instruments breached the bakery and its owners rights under ECHR, arts 9 and/or 10 separately or together with art 14.

In a strikingly similar case on the facts, the US Supreme Court heard oral argument in Masterpiece Cakeshop v Colorado Civil Rights Commission in December 2017. In that case a Colorado baker argued that he could refuse to sell a bespoke cake to same-sex couples based on the First Amendment right to free speech and free exercise of religion clause. At the time of the sale in 2012 same sex marriage in Colorado was not legal, but the Supreme Court in 2015 established a constitutional right to same-sex marriage. In this case the focus of argument on behalf of the baker was on his constitutional right to not to be forced to use his skill to convey a message of support for same-sex marriage which would conflict with his religious faith. His lawyers drew a distinction between discrimination on grounds of ‘race’ and sexual orientation, the former requiring a higher degree of protection than the latter.

In relation to the US case, it has been anticipated by a number of commentators that the case may well be decided on free expression grounds. The legal contexts between the US and Northern Ireland are quite different. In the former free expression is given particular weight in balancing rights and significantly there are no specific anti-discrimination provisions which relate expressly to service providers. As such the court is essentially weighing up competing constitutional rights. In the latter case, there are express provisions in law which prevent service providers from discriminating on the basis of certain protected characteristics. There are exemptions in law for religious institutions but it was not accepted that the bakery was entitled to benefit from such an exemption. Whilst its owners may have been religious, the business per se was not a religiously orientated one rather a for profit one. Nonetheless the Court of Appeal in Northern Ireland referred to a number of cases in the US, Canada and England and Wales in its judgment.  As with the earlier case of Bull v Hall [2013] UKSC 73 this case will be an important judgment in this contentious area of religious belief and public service.

Samantha is the author of a forthcoming book Law and Religion to be published by OUP in 2019.