In an unusually political case decided this week, the Court had to consider the problem of apparently conflicting non-discrimination rights.
In the “Ashers Bakery” case, the Defendents, owners of a bakery, refused to fulfil an order from the claimant, who had requested they make a cake showing a slogan to support same-sex marriage. The claimant believed that he had suffered discrimination contrary to the provisions of the Equality Act (Sexual Orientation) Regulations (Northern Ireland) 2006 and the Fair Employment and Treatment (northern Ireland) Act 1998.
Judge Brownlie upheld the claim, saying that the Defendants’ refusal to make the cake as requested constituted discrimination on the grounds of sexual orientation or political belief.
The Defendants argued that they had not acted out of any animosity towards the claimant as a gay man. Rather, as Christians, they were opposed to same-sex marriage and that to produce the cake would have been acting contrary to their religious beliefs. Crucially, the judge dismissed motive as a deciding factor, saying: “What is required is proof of a factual matrix of less favourable treatment … and not the motive”. The mere fact that the order had been refused, whereas a similar order for a cake promoting heterosexual marriage would not have been refused, showed discrimination.
A further defence was based upon the right to religious freedom under the European Convention on Human Rights. The judge stated that interference with individual rights may only be allowed when three factors are present:
• such interference is prescribed by law: this was clearly present in this case;
• the interference is intended to achieve a legitimate objective: in this case, the objective is equal treatment of all in respect of the provision of goods or services;
• the interference is necessary in a democratic society: here, it was a matter of balancing competing interests, and the law against discrimination outweighs the Defendants’ religious rights. It is not the Courts’ place to allow religious beliefs to direct the law, that is for Parliament to decide.
She also dismissed any claim for religious beliefs exemption (Article 9), since it is well established that this does not apply to commercial organisations.
The case builds upon the decision in the “Bull” case, in which B&B owners refused a room to a gay couple. It provides useful extra support for the principle that religious beliefs cannot be used in law as a justification for discriminatory treatment against others.