Object to the message and not to the messenger; the case of the Northern Irish bakers
In responding to the daily challenges of running vibrant, pluralistic campuses, universities and colleges are routinely challenged to balance competing rights such as privacy and transparency, freedom of expression and equality.
The case of Lee v Ashers Bakery ( UKSC 49) evokes some sympathy for the Supreme Court judges who had to navigate their way between a customer who wanted a cake iced with the message “support gay marriage” and the bakers who did not want to ice the cake as requested because they believed that gay marriage was inconsistent with biblical teaching.
The Supreme Court upheld the bakers’ appeal against a finding of discrimination relating to the protected characteristics of sexual orientation and religion/belief. For the judges, there was insufficient connection between the refusal to provide the cake and Mr Lee’s sexual orientation or his association with the LGBT community. That was because the benefit from the message on the cake would accrue to the families and friends of gay people and the wider community, who recognise the social benefits of gay marriage, as well as to gay people themselves. The refusal was not therefore on the ground of sexual orientation and did not amount to direct discrimination.
Because the issue of same-sex marriage was debated as a matter of potential policy by the Northern Ireland Assembly, support for it was considered to be a political opinion. The bakers objected to being required to promote the political opinion on the cake because of their own religious beliefs. In discrimination claims, the beliefs or opinions of the alleged discriminator are irrelevant. In the circumstances, there was no less favourable treatment on the ground that Mr Lee or the people with whom he associated supported gay marriage, and hence no direct discrimination.
The key distinction on which this case turned therefore was objecting to the message, which is not discriminatory, and objecting to the customer’s protected characteristics, which is. It was the message and not the messenger.
The Supreme Court then went on to consider the rights under the European Convention on Human Rights (ECHR) to freedom of thought, conscience and religion (Article 9) and to freedom of expression (Article 10), which were engaged in the circumstances. Article 9(2) confers a qualified, and hence a limited, right to manifest one’s religion or belief, while the right to hold the belief under Article 9(1) is absolute.
There is therefore unfettered freedom to believe, but the manifestation of that belief can be interfered with in pursuit of a legitimate aim, provided it is proportionate. Obliging a person to manifest a belief which he does not hold has been construed as a violation of the absolute right under Article 9(1); for example, non-believers being required to swear a Christian oath as a condition of remaining members of a parliament. Similarly, the right to freedom of expression under Article 10, which expressly includes the right to hold opinions, has been interpreted also to include the right not to hold or not to manifest opinions.
The Supreme Court concluded that, by being asked to produce the cake, the bakers were being required to express a message with which they deeply disagreed. They were entitled to refuse to produce any message on a cake if they disagreed with it.
Many were surprised by the outcome of this case. A superficial reading of it could lead one to conclude that there is now greater scope for institutions to discriminate against students on the basis of sexual orientation or religion/belief. That would be a mistake. The case underlines the need for there to be a close connection between the treatment meted out to individuals and their protected characteristics. That connection was not found in this case. It was the content of the message and not the characteristics of the customer that induced the refusal to provide the service.
The evolution of the rights under ECHR Articles 9 and 10 to include a right not to express views or not to hold opinions is very interesting. Is there scope here for creative challenge by students whose views are at variance with liberal values actively promoted by institutions? Perhaps that’s just a step too far for the law.