On 10 October 2018, the UK Supreme Court unanimously ruled in the case of Lee v Ashers Baking Company Ltd (Northern Ireland)  UKSC 49 that the business’s refusal to bake a cake with a message supporting gay marriage was completely lawful and not contrary to the Fair Employment and Treatment (Northern Ireland) Order 1998 (made under the Northern Ireland Act 1974) or the Equality Act (Sexual Orientation) Regulations (Northern Ireland) 2006 (made under the Equality Act 2006), as claimed by the Claimant. Writing for the Court, Lady Hale argued that “obliging a person to manifest a belief which he does not hold has been held to be a limitation on his article 9(1) rights” under the European Convention on Human Rights (Buscarini v San Marino (1999) 30 EHRR 208) and that “the freedom not to be obliged to hold or to manifest beliefs that one does not hold is also protected by article 10 of the Convention” (RT (Zimbabwe) v Secretary of State for the Home Department  UKSC 38;  1 AC 152) [at 50-2]. However, Lady Hale expressly distinguished between refusing to serve a customer based on his or her sexual orientation and forcing a business owner to prepare a product promoting a message he or she profoundly disagreed with [at 55]. Consequently, the Court was cautious not to create the impression that the ruling was a free pass to discriminate against homosexual consumers. Ultimately, the Court was of the opinion that forcing Ashers Baking Company to supply the requested cake would be a disproportionate limitation on the exercise of their rights to free speech and religion under Articles 9 and 10 of the European Convention on Human Rights.
The decision of the UK Supreme Court comes not long after the US Supreme Court ruled in the case of Masterpiece Cakeshop v. Colorado Civil Rights Commission, 584 U.S. (2018) that the decision of the Colorado Civil Rights Commission forcing a baker to supply a cake with an analogous message supporting gay marriage was unlawful. In June 2018, the Court held 7-2 (over the dissent of Justice Ginsburg and Justice Sotomayor) that in considering the case, the Commission had been guided by a prejudice towards religion and therefore its decision violated the First Amendment. The case was therefore decided on very narrow grounds and does not definitely resolve the question whether there is a right under the First Amendment to decline to provide a service on sincerely held religious grounds. Only Justice Thomas in his concurrent opinion argued that the Cakeshop owner was fully within his right to refuse to prepare a cake which would violate his religious beliefs. It seems that this question is bound to return to the US Supreme Court in the near future. In fact, shortly after the ruling, in August 2018, the Masterpiece Cakeshop owner sued the State of Colorado in a federal District Court claiming religious persecution involving another incident of a refusal of service, this time in relation to a cake with a transgender message (The Denver Post).
The issue of ‘gay cakes’ has become symbolic of a wider legal debate both in the United Kingdom and the United States on circumstances in which a business can refuse to serve a customer on the grounds of religious beliefs. The two recent judgments by the highest courts of both countries seem to tilt towards prioritising religious liberty over non-discrimination. It remains to be seen whether this will become a trend in both courts’ jurisprudence and to what degree their reasoning will overlap. Interestingly, in its ruling, the UK Supreme Court expressly relied on the approach taken by the US Supreme Court in its general First Amendment jurisprudence:
“The respondent suggests that the jurisprudence in relation to “compelled speech” has been developed principally in the United States as a result of the First Amendment. There is indeed longstanding Supreme Court authority for the proposition that “the right to freedom of thought protected by the First Amendment against state action includes both the right to speak freely and the right to refrain from speaking at all”: see Wooley v Maynard 430 US 705, 714, per Burger CJ, citing Board of Education v Barnette (1943) 319 US 624, 633-634. But in the light of Laramore and RT (Zimbabwe) , and the Strasbourg case law on which they are based, it cannot seriously be suggested that the same principles do not apply in the context of articles 9 and 10 of the Convention.” [at 53]
On other hand, and in somewhat usual manner, the Ashers Baking Company judgment of the UK Supreme Court contains a postscript where Lady Hale addresses the Masterpiece Cakeshop judgment of the US Supreme Court:
“After the hearing in this case, while this judgment was being prepared, the Supreme Court of the United States handed down judgment in Masterpiece Cakeshop Ltd v Colorado Civil Rights Commission (unreported) 4 June 2018. The facts are not the same. A Christian baker refused to create a wedding cake for a gay couple because of his opposition to same sex marriage. There is nothing in the reported facts to suggest that the couple wanted a particular message or decoration on their cake. The Colorado Civil Rights Commission, upheld by the Colorado courts, held that the baker had violated the Colorado law prohibiting businesses which offered sales or services to the public from discrimination based on sexual orientation. The baker complained that this violated his First Amendment rights to freedom of speech and the free exercise of his religion… The majority recognised that businesses could not generally refuse to supply products and services for gay weddings; but they acknowledged that the baker saw creating a wedding cake as an expressive statement involving his First Amendment rights; and contrasted the treatment that he had received, which they perceived as hostile, from the favourable treatment given to three bakers who had refused to produce cakes with messages demeaning gay persons and gay marriages. Justices Ginsburg and Sotomayor, in dissent, drew a clear distinction between an objection to the message on the cake and an objection to the customer who wanted the cake. The other bakery cases had been clear examples of an objection to the message rather than an objection to the customer. In their view the objection in this case was to the customer and therefore a violation. Justices Kagan and Breyer, who voted with the majority on the lack of neutrality point, also accepted that the Commission could have based its reasoning on that distinction – the other bakers would have refused to make cakes with the demeaning messages for anyone, whereas this baker had refused to make this cake because it was a gay couple who wanted it. Justices Thomas and Alito, on the other hand, considered that to make a cake for a gay wedding was expressive in itself and thus compelling it required strict scrutiny. Justice Gorsuch would also not have distinguished between a cake with words and a cake without. The important message from the Masterpiece Bakery case is that there is a clear distinction between refusing to produce a cake conveying a particular message, for any customer who wants such a cake, and refusing to produce a cake for the particular customer who wants it because of that customer’s characteristics. One can debate which side of the line particular factual scenarios fall. But in our case there can be no doubt. The bakery would have refused to supply this particular cake to anyone, whatever their personal characteristics. So there was no discrimination on grounds of sexual orientation. If and to the extent that there was discrimination on grounds of political opinion, no justification has been shown for the compelled speech which would be entailed for imposing civil liability for refusing to fulfil the order.” [at 59-62]
In any event, the inherent conflict between religious rights and the ban on discrimination will inevitably prompt similar cases in both the United Kingdom and the United States within the foreseeable future.