A storm in a ‘cake’ cup

13th January 2022 | Mark Fellows | Employment Law, Dispute Resolution

How often have we wandered into a bakery asking them to make a celebration cake, personalised to suit the occasion. Would you ever consider that such a request could give rise to 7 years of litigation, culminating in a recent... Read more

How often have we wandered into a bakery asking them to make a celebration cake, personalised to suit the occasion. Would you ever consider that such a request could give rise to 7 years of litigation, culminating in a recent decision by the European Court of Human Rights?

No, me neither.

But this is precisely what happened when Gareth Lee visited Ashers Bakery, a family run bakery in Belfast, with a request that they make him a cake with a picture of Bert and Ernie from Sesame Street and the slogan ‘Support Gay Marriage’. The bakery refused to fulfil the order because they felt it contravened their Christian beliefs.

Mr Lee, a gay rights activist, argued that by refusing to fulfil his order, the bakery had discriminated against him on grounds of his sexual orientation. Mr Lee, backed by the Equality Commission in Northern Ireland issued a claim for discrimination. He also argued that the refusal infringed his political beliefs because at the time he made the cake order, Northern Ireland did not legally recognise same sex marriages.

Ashers, backed by the Christian Institute in Northern Ireland, fought the case on the basis they maintained that they had not refused to fulfil the order because Mr Lee was gay, but because the order requested was contrary to their religious beliefs.

What followed was a series of hearings and appeals. At the initial hearing, the Court found in favour of Mr Lee and held that he had been discriminated against on the basis of his sexual orientation and his political beliefs. The Judge acknowledged that Ashers had “genuine and deeply held” religious views, but said their business was not above the law. The compensation to be paid to Mr Lee was £500.

Ashers appealed to the Court of Appeal but were unsuccessful.

They went one step further and appealed to the Supreme Court, the highest Court in the UK, in 2018. On this occasion, the Court ruled in favour of the bakery, effectively confirming that the owners of the bakery had to retain their rights to freedom of expression and religion.  

Mr Lee then took his case to the European Court of Human Rights, but they ruled his case inadmissible, suggesting that not all avenues have been exhausted in the UK. It remains to be seen if Mr Lee will pursue this further.

It is a case that has divided opinion. You can see the respective positions, as Mr Lee understandably felt his rights and beliefs have been infringed, but likewise, the bakery felt that their rights and beliefs would equally have been infringed had they fulfilled the order. In such a case, how do you decide whose rights and beliefs should be given preference over the other? Does one of set of rights and beliefs have greater value over the other? Possibly, a material factor in this dispute may have been the fact that the bakery always argued that they were not refusing to serve Mr Lee because of his sexual orientation; rather it was just a refusal to fulfil that specific order.

And, in case you were wondering, another bakery agreed to make the exact cake that Ashers refused to make, so despite the outcome of the latest instalment of the litigation, it could be said that Mr Lee was still able to have his cake and was able to eat it!

To find out more, please contact Mark Fellows.