Analysis: Battle over Bert and Ernie a closely-watched test of equality laws

The battleground – a cake topped with iced replicas of Bert and Ernie – makes it a case ripe for ridicule and bad puns, but the challenge against a Belfast baker’s refusal to bake a “gay marriage” cake was a closely watched test of Northern Ireland’s equality laws.

It was taken by Gareth Lee, a gay man involved with an advocacy group called QueerSpace, who was planning to attend an event in May last year to mark the end of Northern Ireland's anti-homophobia week and the latest rejection (albeit by a narrower margin that previously) of a Northern Assembly vote on same-sex marriage. Lee decided to buy a cake for the event and placed an order with Ashers Bakery.

Christian business

He gave the bakery an A4 sheet with a picture of Bert and Ernie, the QueerSpace logo and the caption “Support Gay Marriage”. A few days later, he got a call from Ashers to say his order could not be fulfilled as they were a Christian business and, in hindsight, should not have taken the order. The bakery apologised and arranged for a refund.

Lee took a legal challenge, claiming he had been discriminated against contrary to the 2006 Equality Act the 1998 Fair Employment and Treatment Order. The court had to decide whether there had been any direct or indirect discrimination on the grounds of sexual orientation, political opinion or religious belief. Against that, what about the bakery owners’ rights to manifest their religious belief and to freedom of non-expression under the European Convention on Human Rights?

In her judgment, District Judge Brownlie did not accept the bakers' suggestion that the cake order would require them to promote and support gay marriage, which was contrary to their deeply held religious beliefs. Their bakery was a business, not a religious organisation, and the law required them to supply services to all.

The judge found Ashers had unlawfully discriminated against Lee on the ground of sexual orientation. The purpose of the regulations was to ensure gay people were treated equally with straight people by those in the business of supplying goods, facilities and services. The Northern Assembly chose not to incorporate a conscience clause and by doing so explicitly excluded Christian businesses from an exemption in the regulations.

On the Fair Employment and Treatment Order, which is aimed at preventing discrimination on the grounds of religious belief or political opinion, the judge also found in favour of Lee. The crucial question in a case of alleged discrimination, she said, was why the claimant received less favourable treatment.

Discrimination

“Was it on grounds of religious belief and/or political opinion? Or was it for some other reason? If it is on the grounds of religious belief and/or political opinion, direct discrimination is established. The reason why the discriminator acted on those grounds is irrelevant.”

Judge Brownlie said she had no doubt that if Lee had ordered a cake with the words “Support Marriage” or “Support Heterosexual Marriage” it would have been provided.

Finally, she rejected the bakers’ attempt to invoke rights under the European Convention of Human Rights.

Of course, the case drew such attention partly because of its timing. Same-sex marriage remains a divisive issue in Northern Ireland and the devolved Assembly at Stormont has repeatedly rejected attempts to have it introduced.

The judgment will divide liberals and comes three days before voters in the Republic go to the polls in a referendum that would extend marriage rights to same-sex couples.

There are two things worth saying about the relevance of the case south of the border. First, a similar claim could succeed in the Republic, but it could be more difficult than in the North because the Republic’s equality laws – in place since 2000 – do not include discrimination on the ground of one’s political opinion.

Second, there’s no link between Friday’s referendum and a case such as this. The same robust anti-discrimination laws will be in place irrespective of the outcome. A similar case might or might not succeed in the Republic, but nothing in the referendum will affect it either way.