Right of refusal: Ashers in the Court of Appeal

The Northern Ireland Court of Appeal judgment in the Lee v Ashers case is out today. It corrects some rather glaring errors in the initial County Court judgment and raises rather intriguing questions about how discrimination law is to develop in the future. At issue here, really, is not free speech but what is termed associative discrimination in the case law – in other words, were Ashers in effect discriminating against gay people by not baking a cake which would carry a slogan in support of same-sex marriage?

As the judges note at paragraph 55, the leading judgment here is Lady Hale’s in Bull v Hall [2013] UKSC 73, where she quotes Advocate General Sharpston in the EU case of Bressol [2010] 3 CMLR 559:

“I take there to be direct discrimination when the category of those receiving a certain advantage and the category of those suffering a correlative disadvantage coincide exactly with the respective categories of persons distinguished only by applying a prohibited classification.”

What this means is that, in law, even if one doesn’t discriminate against (for instance) gay people explicitly, if the action you take only impacts gay people then that is still direct discrimination and ipso facto unlawful. This is clearly right – for instance, if people who have purchased sanitary products for personal use are barred from doing something, that is directly discriminatory against women even if one doesn’t expressly refuse to serve women.

The judge at the County Court got rather muddled in her judgment. She held that refusing to print a cake saying “Support Gay Marriage” was a case of direct discrimination because support for same-sex marriage was “indissociable from sexual orientation” – in layman’s terms, she was arguing that only gays and lesbians support same-sex marriage. “That was clearly wrong,” said Morgan LCJ rather flatly in paragraph 24 of today’s appeal judgment.

But the Court of Appeal did something much more ingenious. It looked, not at the cake or even the slogan as the benefit denied to Gareth Lee, the claimant, but at the benefit that accrued from the slogan (i.e. “Support Gay Marriage”). The reasoning of the Court at paragraph 58 seems to be that since only LGB people would benefit from the potential introduction of same-sex marriage in Northern Ireland, then refusing to print a message in support of that counts as directly discriminating against a protected group (and nobody else).

Morgan LCJ doesn’t go into great detail about what constitutes a benefit for these purposes. Courts are unsentimental places; it makes some sense that the Court of Appeal would not consider whether the emotional benefits to heterosexual friends and family of LGB people who might be able to marry would count as a benefit to people other than a protected class. But it’s worth working out what this might mean.

For example, a cake which carried the message “Support Affirmative Action” would most likely be protected in the same way; after all, only BME people will benefit (at least legally and financially) from quotas or positive discrimination. Likewise, a cake exhorting the eater to “Stand Up For the Gender Recognition Act” can only provide a legal and financial benefit to trans people, another protected class under the Equality Act. However, a message such as “Abortion Rights Now” might not, because it is not just women who might benefit from women being able to control their number of offspring. The distinction is not an easy one to draw, but it does appear to be the only (rather vague) principle which comes out of the case.

Had I been the judge here, I suspect I would have ignored the sexual orientation discrimination point and constrained the operation of the case to the bar on political discrimination. It is worth noting that political discrimination is not illegal in England, Scotland or Wales – it is illegal in Northern Ireland to try to stamp out sectarianism (i.e. so that nationalists cannot deny services to unionists and vice versa). On these grounds, as District Judge Brownlie held at paragraph 66 of her judgment in the County Court, this would have been a straightforward case of political and religious discrimination. This angle was avoided by the Court of Appeal, as it isn’t necessary to reach a finding, but I think it makes more sense and requires fewer logical leaps than the above. It is worth noting that in Northern Ireland, at least, Ashers would probably have to bake the aforementioned “Abortion Rights Now” cake.

This points to an interesting conclusion to be drawn from this case. The Court dismissed the operation of various defences to discrimination proceedings, which will undoubtedly be picked over by those more expert than me in these matters. At one point, Morgan LCJ said (para. 67) rather memorably that “the fact that a baker provides a cake for a particular team or portrays witches on a Halloween cake does not indicate any support for either.”

This seems a statement which will be hard to generalise past the instance of a bakery, but Morgan LCJ was making an important point. At para. 100 he noted that the “answer” to anti-discrimination legislation which hurts a business or offends certain beliefs is “for the supplier of services to cease distinguishing, on prohibited grounds, between those who may or may not receive the service. … In the present case the appellants might elect not to provide a service that involves any religious or political message. What they may not do is provide a service that only reflect their own political or religious belief …”

If, as seems likely, the implication from Ashers is that certain political statements are protected under discrimination law since their benefits would only accrue to a protected class, it follows that political opponents of those statements will have to issue a general prohibition on political statements. Morgan LCJ drew the comparison, at para. 47, to a printers’ firm providing election posters. It seems likely that a printer could refuse to print all political statements, but would not be permitted to refuse to print only statements on behalf of a same-sex marriage advocacy group or (to take my example) a campaign against the so-called ‘spousal veto’ in the Gender Recognition Act. In effect, the essence of the judgment is to make the publishing of certain political opinions compulsory by everyone who wishes to publish any political opinions whatsoever. This seems a somewhat adventurous interpretation of equality law, but it makes more sense than the messy first instance judgment.

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