Religious Rights versus Gay Rights?

11 June 2015

Maxine Orr, Partner, considers the recently reported case of Gareth Lee v. Ashers Baking Company Ltd

The law often grapples with competing rights among individuals.The recently reported case of Gareth Lee v Ashers Baking Company Ltd, the County Court in Northern Ireland had to consider the issue of competing rights of homosexuals against the rights of Ashers Baking Company Ltd in its refusal to supply a cake with a “Support Gay Marriage” caption as they contended it conflicted with their freedom of conscience or religious belief.

Mr Gareth Lee, who is a gay man, is associated with an organisation called QueerSpace which is a volunteer led organisation for the lesbian, gay, bisexual and transgendered community in Northern Ireland.He was planning to attend a private event on Friday 17 May 2014 to mark the end of the Northern Ireland anti-homophobia week and to mark the political momentum towards legislation for same-sex marriage.He decided to purchase a cake for the event.He had previously purchased items at this branch of Ashers and had become aware from a leaflet that he could have cake iced with a graphic of his own design.He placed the order in and around 8 or 9 May 2014.His order was accepted without comment however on 12 May 2014 he received a phone call from Ashers stating that they should not have taken the order, apologised and stated that the order could not be fulfilled as they are a Christian business.Mr Lee was unable to find another bakery in time to provide a cake with the required design.The logo on the cake was a coloured picture of “Bert and Ernie”, the logo of QueerSpace and the headline caption “Support Gay Marriage”.It was the position of the directors of Asher’s that they were regular churchgoers and that their Christian faith affected their lives on a much broader sense and that they believed that the only divinely ordained sexual relationship is that between a man and a woman within the bonds of matrimony.They stated that if they provided the cake in the terms requested they would feel it was a betrayal of their faith.

The County Court Judge stated that “I do not accept the Defendants submissions that what the Plaintiff wanted them to do would require them to promote and support gay marriage which is contrary to their deeply held religious beliefs.Much as I acknowledge fully their religious belief is that gay marriage is sinful, they are in a business supplying services to all, however constituted.The law requires them to do just that, subject to the graphic being lawful and not contrary to the terms and conditions of the company”.

“The Defendants are not a religious organisation; they are conducting a business for profit and, notwithstanding their genuine religious beliefs, there are no exceptions available under the 2006 Regulations which apply to this case and the Legislature, after appropriate consultation and consideration, has determined what the law should be”.

The Judge stated that the purpose of the Regulations was to secure that people of homosexual orientation are treated equally with people of heterosexual orientation by those in the business of supplying goods, facilities and services.Parliament was very well aware that there were deeply held religious objections to what was being proposed and careful consideration had been given to how best to accommodate these within the overall purpose.Furthermore the Judge stated that the McArthurs directly discriminated against Mr Gareth Lee on the ground of religious belief and/or political opinion.She found that the directors, Mr and Mrs McArthur disagreed with the religious belief and political opinion held by Mr Gareth Lee with regards to changing the law to permit gay marriage and, accordingly by the refusal to provide the services sought, treated the Mr Gareth Lee less favourably contrary to the law. The Judge stated that “... whilst the Defendants have a right to hold religious views they are limited as to how they manifest them provided those limitations are prescribed by law; in this case the 2006 Regulations and the 1998 Order; and are necessary for the protection of the rights and freedom of others”.

The Judge recognised that the Court was faced with competing rights under the Human Rights Act 1998.The Judge stated that she was satisfied that the legislation in Northern Ireland prohibiting discrimination on the grounds of religion/political opinion and sexual orientation was compatible under the Human Rights Convention and to find that it was incompatible would be to allow a religious belief to dictate what the law is.That is a matter for the Assembly.The Judge stated that “... the law must protect all.It must protect the rights of the Defendants to have and to manifest their religious beliefs but it also recognises that the rights of the Plaintiff not to be discriminated because of his sexual orientation must also be protected”.

Although the issue arose in the context of the provision of a cake in a commercial setting, these laws also apply to the employment contract and all businesses should take legal advice when dealing with potential discrimination issues..

Maxine Orr is a Partner in Worthingtons Commercial Solicitors, specialising in employment law.

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