The decision in Lee v Ashers Baking Co Ltd  NICty 2 has highlighted the problems Businesses face in relation to conflicting protected rights.
Summary of facts
The Plaintiff is a gay man associated with QueerSpace, a volunteer led organisation for the Lesbian, Gay, Bi sexual and Transgender Community. Following Political debates on the issue of whether gay marriage should be legalised in Northern Ireland the Plaintiff was due to attend an event in support of this cause. He placed an order with the Defendant for a cake with the logo of QueerSpace and the slogan “Support Gay Marriage”. Following the order being taken by the Defendant, the Plaintiff received a call from the Defendant explaining that they could not fulfil the order because they are a Christian Business and in hindsight should not have taken the order.
The defendants argued that the Equality Act (Sexual Orientation) Regulations (Northern Ireland) 2006 only protect sexual orientation, not sexual conduct, and they did not refuse the order because the Plaintiff was gay but because the logo that was to be put on the cake promoted gay marriage which, as Christians, they believe went against God’s Law and do not support gay marriage for this reason – this argument was rejected on the basis that same sex marriage is inextricably linked to sexual relations between same sex couples which is a union of persons having a particular sexual orientation.
The Judge also rejected the defendants argument that the directors were permitted to rely on the statutory exemption for organisations in relation to religious belief (pursuant to regulation 16) because the bakery was a purely commercial venture. The fact that there was no reference to furthering religious values within the bakery's Memorandum and Articles of Association undermined the defendants argument.
Despite the defendants argument that they were entitled to refuse to supply services which could conflict with freedom of conscience or religious belief, Judge Brownlie held that the bakery's refusal to bake a cake for this customer amounted to direct discrimination on grounds of his sexual orientation.
In her judgment Judge Brownlie said that “if the Plaintiff ran a bakery business and the Defendants wanted him to bake a cake with the words “support heterosexual marriage” the Plaintiff would be required to do so as otherwise he would be discriminating against the Defendants. This is not a law which is for one belief only but is equal to one and for all.”
There have been several other cases where the link between discrimination and religion has been tested that are relevant to employers and service providers. The trend has been for courts and tribunals to find that employers are entitled to take steps to ensure that services are delivered on an equal opportunities basis, even if these steps conflict with an employee’s religious beliefs.
The 'Gay Cake' row has prompted a proposal to include a so called 'conscience clause' in equality legislation in Northern Ireland which would introduce a legal exemption on grounds of strongly held religious beliefs. This move has already attracted political input from Westminster.