Discrimination Against Ideas and Discrimination Against Individuals in Lee v. Ashers
On October 10th, the United Kingdom Supreme Court released a decision that allowed a baker in Northern Ireland to refuse to make a cake with pro-LGBT+ messages on it. [1] This case is significant because it is set against a background of diminished LGBT+ rights in Northern Ireland. [2] The International Lesbian, Gay, Bisexual, Trans and Intersex Association (ILGA) rates Northern Ireland as the worst place in the United Kingdom for LGBT+ individuals. [3] This is because LGBT+ rights in Northern Ireland are limited and slowly gained compared to those in the rest of the United Kingdom. For example, LGBT+ individuals still do not have the right to marry, as they do in the rest of the United Kingdom. In addition, Northern Ireland was the last constituent country of the UK the lift a ban on blood donations by LGBT+ individuals. [4] In the Northern Irish context, the Supreme Court’s decision seems to be part of a pattern of discrimination against LGBT+ individuals. Yet, the Supreme Court argued the right of the baker to refuse to make a pro-LGBT+ cake was not an instance of illegal discrimination against people; rather it was only legal discrimination against ideas.
The case began when Gareth Lee, a gay man associated with an LGBT+ volunteer organization, ordered a cake that featured gay Sesame Street characters and the message “Support Gay Marriage.” Amy and Daniel McArthur, the couple who ran the bakery, then refused to create the cake, citing their religious opposition to gay marriage. [5] The case made its way to the Supreme Court. The court affirmed that discriminating against gay people was illegal, yet also affirmed that the MacArthurs’ action did not constitute discrimination against gay people. [6] Their refusal to create the cake was based on their objections to the message on the cake, not Lee himself. [7] This means that the McArthur’s were not discriminating against Lee, but rather discriminating against ideas.
This poses the question of whether there is a difference between, on the one hand, discriminating against a group of individuals, and, on the other, discriminating against ideas. To explore this, it is important to consider a similar case. In Bull v. Hall, the United Kingdom Supreme Court ruled in favor of a gay couple that was denied a double room at a bed and breakfast operated by a Christian couple that opposed gay marriage. [8] In the case of Bull v. Hall, a gay couple was denied a service solely because of their sexual orientation. However, in the case of Lee v. Ashers, Lee was denied a cake because the owners did not agree with the message that would be spread through their creation of the cake. If they were forced to make the cake, they would be forced to disseminate a message that went against their beliefs, which would violate their right to freedom of speech.
One could object to the Supreme Court’s line of reasoning: is Lee’s sexual orientation really “dissociable” from the message that was on the cake? In other words, can one hold anti-LGBT+ beliefs without discriminating against LGBT+ individuals? Further, does baking a cake with a pro-LGBT+ message constitute disseminating pro-LGBT+ beliefs? The Belfast appeals court that the case initially went to said no, claiming that that no person would perceive the message on the cake as being a reflection of the bakers’ belief. [9] As the court stated, “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.” [10] However, the United Kingdom Supreme Court ruled in favor of the bakery because they determined that Lee’s sexual identity was in fact dissociable from the message and ideas represented on the cake.
While it may not be permissible to discriminate against an individual, this case creates a precedent for claiming that it is permissible to discriminate against an idea. It is no doubt that this case will continue to remain a controversial issue, partially due to the fuzziness of the line between discrimination against an idea versus discrimination against an individual. This will be especially significant to monitor considering that Northern Ireland continues to be an area where LGBT+ rights are limited.
[1] Lee (Respondent) v Ashers Bakery Company Ltd and others. [2018] UKSC 49. UKSC 2017/0020. Accessed November 15th, 2018.
[2] "Northern Ireland a Place Apart When It Comes to LGBT Rights." The Irish News. Accessed November 15th, 2018. https://www.irishnews.com/opinion/letterstotheeditor/2018/07/17/news/northern-ireland-a-place-apart-when-it-comes-to-lgbt-rights-1383367/.
[3] “Ashers 'gay cake' row: Bakers win Supreme Court appeal”. BBC. Accessed November 15th, 2018. https://www.bbc.com/news/uk-northern-ireland-45789759.
[4] "Northern Ireland a Place Apart When It Comes to LGBT Rights." The Irish News. Accessed November 15th, 2018. https://www.irishnews.com/opinion/letterstotheeditor/2018/07/17/news/northern-ireland-a-place-apart-when-it-comes-to-lgbt-rights-1383367/.
[5] "Bakery Didn't Discriminate in 'gay Cake' Case, U.K. Court Rules." NBCNews.com. Accessed November 15th, 2018. https://www.nbcnews.com/feature/nbc-out/bakery-didn-t-discriminate-gay-cake-case-u-k-court-n918656.
[6] Idem.
[7] Idem.
[8] "When Employees' Religious Beliefs Clash with Gay Customers' Rights: Five Key Cases." Personnel Today. Accessed November 15th, 2018. https://www.personneltoday.com/hr/employees-religious-beliefs-clash-gay-customers-rights-five-key-cases/.
[9] Bowcott, Owen. "UK Supreme Court Backs Bakery That Refused to Make Gay Marriage Cake." The Guardian. Accessed November 15th, 2018. https://www.theguardian.com/uk-news/2018/oct/10/uk-supreme-court-backs-bakery-that-refused-to-make-gay-wedding-cake.
[10] Idem.