{"id":1747,"date":"2018-10-30T19:24:26","date_gmt":"2018-10-30T19:24:26","guid":{"rendered":"https:\/\/sites.manchester.ac.uk\/religion-law-and-the-constitution\/?p=1747"},"modified":"2025-11-14T11:49:43","modified_gmt":"2025-11-14T11:49:43","slug":"ashers-bakery-gay-marriage-and-religion-why-resolving-conflicting-rights-isnt-a-piece-of-cake","status":"publish","type":"post","link":"https:\/\/sites.manchester.ac.uk\/religion-law-and-the-constitution\/2018\/10\/30\/ashers-bakery-gay-marriage-and-religion-why-resolving-conflicting-rights-isnt-a-piece-of-cake\/","title":{"rendered":"Ashers Bakery, Gay Marriage and Religion: Why resolving conflicting rights isn’t a piece of cake"},"content":{"rendered":"

[et_pb_section bb_built=”1″ admin_label=”section” fullwidth=”on” next_background_color=”#000000″ global_module=”322″][et_pb_fullwidth_menu global_parent=”322″ _builder_version=”3.17.6″ menu_id=”8″ submenu_direction=”downwards” fullwidth_menu=”off” background_layout=”dark” module_class=”main-navigation” \/][\/et_pb_section][et_pb_section bb_built=”1″ fullwidth=”off” specialty=”on” prev_background_color=”#000000″ next_background_color=”#1d1d1d”][et_pb_column type=”2_3″ specialty_columns=”2″][et_pb_row_inner locked=”off”][et_pb_column_inner type=”4_4″ saved_specialty_column_type=”2_3″][et_pb_post_title _builder_version=”3.17.6″ featured_placement=”above” locked=”on” parent_locked=”off” date_format=”j M Y” \/][et_pb_text _builder_version=”3.17.6″ background_layout=”light” parent_locked=”off”]<\/p>\n

\"slice<\/p>\n

The British “gay cake case” has been every bit as controversial as Masterpiece Bakery, its transatlantic cousin.\u00a0 The Supreme Court recently reversed the decisions of both the first instance judge and the Court of Appeal, finding that Ashers Bakery had not<\/em> unlawfully discriminated against Mr Gareth Lee in refusing to supply him with a bespoke Bert and Ernie cake, emblazoned with the slogan “Support Gay Marriage”.\u00a0\u00a0 The litigation has divided opinion, not always along predictable lines, and for instance, unexpectedly, Peter Tatchell found himself speaking in defence of the rights of Ashers Bakery.\u00a0 No doubt the decision will provide plentiful fodder for legal commentators for some time to come, and in this blog we intend to explore just one of the wider issues which have emerged from the case: the question of what amounts to discrimination.<\/p>\n

This is a subject on which gallons of ink have been spilt across books and articles, but one specific point emerges from the judgment given by Baroness Hale. It had been accepted by all sides that the bakery did not know for certain that Mr Lee was gay when they refused the order, and that they would have declined to make this particular cake for any other customer, hetero, bi or pansexual.\u00a0 Furthermore, they weren’t refusing to serve Mr Lee any cake, just this campaign-cake.\u00a0 Consequently, any discrimination was not based around any different treatment metered out because of Mr Lee’s sexual orientation, and the claim would have to be on the basis of discrimination by association<\/em>, in other words, that Mr Lee was treated differently because of the sexual orientation of third parties (in this case, the bisexual and gay community at large).<\/p>\n

Baroness Hale, in the leading judgment, which was given with the clarity, eloquence and assurance expected from her by the legal world, found however that there was insufficient link to justify this assessment, as this wasn’t a situation where the criterion being applied had a practical impact exclusively on a protected group.\u00a0 Classic examples of this phenomenon are James v Eastleigh Borough Council <\/em>and, more recently, Preddy v Bull.\u00a0 <\/em>In the first, people of statutory retirement age were given free access to the swimming pool, and as legislation set the age at 60 for women and 65 for men, males aged 60-64 were directly disadvantaged.\u00a0 In the second, only married <\/em>couples were allowed to book double bedrooms, and because marriage was at the time only available to heterosexual couples, same sex people in civil partnerships were directly discriminated against.\u00a0\u00a0 Baroness Hale pointed out the undeniable fact that plenty of straight people support gay marriage, and would also potentially benefit by its introduction (e.g. if they are the child of gay parents).\u00a0 She, therefore, concluded that it could not be said that discriminating against people who supported gay marriage was discrimination by association against gay people, because non-gay people fell into that category as well. Having said which, whilst the analysis up to this point is founded on flawless logic, it is unclear how or why A follows B when it comes to the next step, and there is also room for doubt about in the interpretation of case law.<\/p>\n

Firstly, just because in James v Eastleigh BC <\/em>and Preddy v Bull <\/em>there was a complete <\/em>overlap between the category of persons affected and the policy being applied, it cannot be categorically\u00a0 stated that this is a sine qua non for discrimination by association.\u00a0 Certainly, the Court of Appeal and Divisional Court did not imagine that there was such a requirement, and Baroness Hale did not advance any reasons<\/em> why it should be so.\u00a0 Excluding this as a possibility effectively leaves a large loop-hole in protection in general terms, whatever the merits of the Ashers case.\u00a0 <\/em><\/p>\n

Secondly, the Supreme Court expressed concern about what they perceived as too expansive an approach to discrimination by association, citing the majority in English v Thomas Sanderson Blinds <\/em>in what could be interpreted as a critical way, whilst praising the dissenting opinion of Laws LJ.\u00a0 The facts concerned a man who was subjected to homophobic taunts by his workmates, even though they did not believe him to actually be gay.\u00a0 The majority of the Court concluded that the difference between a situation in which someone received homophobic abuse because they were erroneously perceived to be gay, and the present case, where a straight man was tormented because he was seen to be “like” a gay man was “barely perceptible”<\/em> (per Sedley LJ para 38).\u00a0 The judgment given by Laws LJ, which Baroness Hale praised, disputed this, and advocated confining claims to situations where the harassment arose from a person’s actual or perceived sexual orientation.<\/p>\n

We would respectfully argue the majority analysis given by Sedley LJ is greatly preferable.\u00a0 Firstly, in terms of individual protection, it would leave victims persecuted for perceived<\/em> characteristics very vulnerable if their prejudiced tormenters could argue that they were aware all along of the absence of the characteristic in question.\u00a0 Why give wrong-doers a second bite of the defence cherry?\u00a0 Furthermore, if we, as a democratic society, have concluded that, for example, racist, religiously bigoted or homophobic abuse is unacceptable, and have enshrined this value in equality law, is then allowing this form of attack ever acceptable?\u00a0 What message is it sending if people can use protected characteristics as vehicles for bullying based on stereotypes, with apparent impunity, as there is no duty on employers and others to act unless someone actually possessing the characteristic is a target?\u00a0 If, for example, a person has some physical characteristics associated with a racial group, even though they are not a member of that group, and are known<\/em> not to be a member, would belittling taunts and comparisons not still be racist?<\/p>\n

One function of equality law is to draw a bright line around behaviour which we collectively have decided has no place in the public or employment sphere.\u00a0 Abusing someone ‘as though’ they were a gay man is harnessing a protected characteristic for deliberately harmful purpose, and it is perpetuating the message that gay men are lesser, comical or, at the bare minimum, conform to a certain image.\u00a0 What was taking place in the English<\/em> case was homophobic bullying, both in terms of its impact on the direct victim, and also the wider social repercussions, and in our view, the Court of Appeal were wholly correct to categorise it as such.\u00a0 It is to be hoped that the obiter remarks of in Ashers<\/em> will not lead to a different conclusion in future cases.<\/p>\n

Related Articles<\/strong><\/p>\n

Lee v Ashers Baking Company [2018] UKSC 49<\/a><\/p>\n

[\/et_pb_text][et_pb_post_nav _builder_version=”3.0.106″ in_same_term=”off” show_prev=”on” show_next=”on” prev_text=”Previous” next_text=”Next” locked=”on” parent_locked=”off” \/][et_pb_comments _builder_version=”3.0.106″ show_avatar=”on” show_reply=”on” show_count=”on” background_layout=”light” header_font_size_tablet=”51″ header_line_height_tablet=”2″ custom_button=”on” button_icon_placement=”right” button_text_color=”#ffffff” button_use_icon=”off” locked=”on” parent_locked=”off” button_text_size__hover_enabled=”off” button_text_size__hover=”null” button_one_text_size__hover_enabled=”off” button_one_text_size__hover=”null” button_two_text_size__hover_enabled=”off” button_two_text_size__hover=”null” button_text_color__hover_enabled=”off” button_text_color__hover=”null” button_one_text_color__hover_enabled=”off” button_one_text_color__hover=”null” button_two_text_color__hover_enabled=”off” button_two_text_color__hover=”null” button_border_width__hover_enabled=”off” button_border_width__hover=”null” button_one_border_width__hover_enabled=”off” button_one_border_width__hover=”null” button_two_border_width__hover_enabled=”off” button_two_border_width__hover=”null” button_border_color__hover_enabled=”off” button_border_color__hover=”null” button_one_border_color__hover_enabled=”off” button_one_border_color__hover=”null” button_two_border_color__hover_enabled=”off” button_two_border_color__hover=”null” button_border_radius__hover_enabled=”off” button_border_radius__hover=”null” button_one_border_radius__hover_enabled=”off” button_one_border_radius__hover=”null” button_two_border_radius__hover_enabled=”off” button_two_border_radius__hover=”null” button_letter_spacing__hover_enabled=”off” button_letter_spacing__hover=”null” button_one_letter_spacing__hover_enabled=”off” button_one_letter_spacing__hover=”null” button_two_letter_spacing__hover_enabled=”off” button_two_letter_spacing__hover=”null” button_bg_color__hover_enabled=”off” button_bg_color__hover=”null” button_one_bg_color__hover_enabled=”off” button_one_bg_color__hover=”null” button_two_bg_color__hover_enabled=”off” button_two_bg_color__hover=”null” \/][et_pb_text admin_label=”Related posts” _builder_version=”3.0.106″ background_layout=”light” locked=”on” parent_locked=”off”]<\/p>\n

Related<\/h1>\n

Related posts:<\/h3>
<\/div>
<\/div>
<\/div>

Covid-19 and Religious Freedom<\/h2><\/div><\/div><\/a>
<\/div>

Challenge to Guidance on Transgender Issues in Cornish Schools<\/h2><\/div><\/div><\/a>
<\/div>

Masterpiece Bakery, Gay Marriage and Human Rights: Pandora\u2019s Cake-box?<\/h2><\/div><\/div><\/a><\/div>
<\/div><\/div><\/div>\n

[\/et_pb_text][\/et_pb_column_inner][\/et_pb_row_inner][\/et_pb_column][et_pb_column type=”1_3″][et_pb_sidebar _builder_version=”3.0.106″ area=”sidebar-1″ orientation=”left” show_border=”off” background_layout=”light” locked=”on” \/][\/et_pb_column][\/et_pb_section][et_pb_section bb_built=”1″ admin_label=”Connect Title” custom_padding=”0px||0px|” _builder_version=”3.0.90″ background_color=”#1d1d1d” module_class=”footer-section” prev_background_color=”#ffffff” global_module=”380″][et_pb_row admin_label=”row” global_parent=”380″ locked=”off” allow_player_pause=”off” parallax=”off” parallax_method=”on” parallax_1=”off” parallax_method_1=”off” parallax_2=”off” parallax_method_2=”off” parallax_3=”off” parallax_method_3=”off” make_fullwidth=”off” use_custom_width=”off” width_unit=”on” use_custom_gutter=”off” make_equal=”off” module_id=”footer-row” _builder_version=”3.0.89″][et_pb_column type=”1_3″][et_pb_text admin_label=”Contact Us Title” global_parent=”380″ background_layout=”dark” text_text_color=”#ffffff” parent_locked=”off” background_position=”top_left” background_repeat=”repeat” background_size=”initial”]<\/p>\n

Contact Us<\/h4>\n

[\/et_pb_text][et_pb_text admin_label=”Contact Us” global_parent=”380″ text_text_color=”#aaaaaa” parent_locked=”off” background_layout=”light” text_orientation=”left” use_border_color=”off” border_color=”#ffffff” border_style=”solid” module_class=”contact-us” background_position=”top_left” background_repeat=”repeat” background_size=”initial”]<\/p>\n

+44 (0) 161 306 6000<\/p>\n

[\/et_pb_text][\/et_pb_column][et_pb_column type=”1_3″][et_pb_text admin_label=”Find Us Title” global_parent=”380″ background_layout=”dark” text_text_color=”#ffffff” parent_locked=”off” background_position=”top_left” background_repeat=”repeat” background_size=”initial”]<\/p>\n

Find Us<\/h4>\n

[\/et_pb_text][et_pb_text admin_label=”Address” global_parent=”380″ background_layout=”dark” text_orientation=”left” use_border_color=”off” border_color=”#ffffff” border_style=”solid” module_id=”address” parent_locked=”off” background_position=”top_left” background_repeat=”repeat” background_size=”initial”]<\/p>\n

The University of Manchester
Oxford Rd
Manchester
M13 9PL
UK<\/a><\/p>\n

[\/et_pb_text][\/et_pb_column][et_pb_column type=”1_3″][et_pb_text admin_label=”Connect Title” global_parent=”380″ background_layout=”dark” text_text_color=”#ffffff” parent_locked=”off” background_position=”top_left” background_repeat=”repeat” background_size=”initial”]<\/p>\n

Connect With Us<\/h4>\n

[\/et_pb_text][et_pb_code admin_label=”Social Media” global_parent=”380″ parent_locked=”off” _builder_version=”3.17.6″]<\/p>\n