## Facts

- Gareth Lee ordered and paid for a custom cake from a Northern Ireland bakery featuring the QueerSpace logo and the words “Support Gay Marriage.”
- After accepting the order, the bakery’s co-owner telephoned Lee to cancel, stating the bakery was a Christian business and should not have accepted the order; the bakery refunded the payment.
- Lee obtained a similar cake elsewhere and brought proceedings alleging unlawful discrimination.
- Lee alleged discrimination (1) on grounds of sexual orientation under the Equality Act (Sexual Orientation) Regulations (Northern Ireland) 2006 and (2) on grounds of religious belief or political opinion under the Fair Employment and Treatment (Northern Ireland) Order 1998.
- The bakery and its owners maintained they would serve Lee generally but would not produce a cake bearing a slogan endorsing same-sex marriage because of their religious beliefs.
- A devolution reference raised questions about the compatibility of the relevant Northern Ireland legislation with European Convention on Human Rights (ECHR) Articles 9 and 10.

## Issues

1. Whether refusing to supply a cake iced with “Support Gay Marriage” was direct discrimination on grounds of sexual orientation.
2. Whether the refusal was direct discrimination on grounds of political opinion or religious belief.
3. Whether, if the legislation required the bakery to supply the cake, ECHR Articles 9 and 10 required an interpretation avoiding unjustified interference with freedom of religion and expression (including the right not to speak).
4. Whether the court had jurisdiction to resolve the appeal and associated devolution questions.

## Decision

- The Supreme Court unanimously allowed the bakery’s appeal and set aside the findings of unlawful discrimination.
- The Court held there was no direct discrimination on grounds of sexual orientation because the refusal was directed at the requested message, not the customer’s sexual orientation.
- The Court held there was no direct discrimination on grounds of political opinion or religious belief on the facts, because the bakery would have refused to produce the same message for any customer.
- The Court concluded that compelling the bakery to produce the slogan would unjustifiably interfere with rights protected by ECHR Articles 9 and 10, including freedom not to express a message.
- The Court addressed the devolution reference and jurisdictional points, concluding that its construction avoided any finding that the Northern Ireland provisions were outside legislative competence.

## Legal Principles

- Less favorable treatment is “because of” a protected characteristic only when the protected characteristic is the reason for the treatment; objection to a message is not, without more, objection to the customer.
- A message supporting same-sex marriage is not inseparable from any one sexual orientation; a refusal applying to “anyone who wanted that message” is not direct sexual-orientation discrimination.
- Anti-discrimination law generally prohibits refusal of service to a person because of protected status, but does not ordinarily require a trader to express or endorse a particular message.
- ECHR Article 10 protects freedom of expression, including freedom not to express an opinion; compelled expression requires strong justification.
- ECHR Article 9 protects freedom of thought, conscience, and religion, including protection against being required to manifest approval of beliefs contrary to one’s faith, absent sufficient justification.

## Conclusion

The court held that a bakery’s refusal to produce a cake bearing “Support Gay Marriage” was a refusal to supply a particular message rather than discrimination against the customer, and that compelling production of the slogan would unjustifiably interfere with rights to freedom of expression and religion.


Lee v. Ashers Baking Co. Ltd., [2018] UKSC 49 (U.K. 2018)