Gareth Lee v Colin McArthur, Karen McArthur and Ashers Baking Company Limited
| Jurisdiction | Northern Ireland |
| Judge | Morgan LCJ |
| Judgment Date | 2016 |
| Neutral Citation | [2016] NICA 39 |
| Date | 24 October 2016 |
| Court | Court of Appeal (Northern Ireland) |
1
Neutral Citation: [2016] NICA 39
Ref:
MOR10086
Judgment: approved by the Court for handing down
Delivered:
24/10/2016
(subject to editorial corrections)
IN HER MAJESTY'S COURT OF APPEAL IN NORTHERN IRELAND
________
APPEAL BY WAY OF CASE STATED FROM A DECISION OF THE PRESIDING
DISTRICT JUDGE (CIVIL)
________
Between:
GARETH LEE
Plaintiff/Respondent;
-and-
COLIN McARTHUR, KAREN McARTHUR AND
ASHERS BAKING COMPANY LIMITED
Defendants/Appellants.
________
Before: Morgan LCJ, Weatherup LJ and Weir LJ
_______
MORGAN LCJ (giving the judgment of the court)
[1] This is an appeal by way of case stated from a decision of District Judge
Brownlie whereby she found that the appellants directly discriminated against the
respondent on the grounds of sexual orientation contrary to the Equality Act (Sexual
Orientation) Regulations (NI) 2006 (“the 2006 Regulations”) and on the grounds of
religious and political belief contrary to the Fair Employment and Treatment (NI)
Order 1998 (“the 1998 Order”). Mr Scoffield QC appeared with
Professor McCrudden and Ms Crowther for the appellants, Mr Allen QC for the
respondent and the Attorney General appeared with Ms Tremlett.
Background
[2] The respondent is a gay man and is associated with an organisation called
QueerSpace which is a volunteer led organisation for the lesbian, gay, bisexual and
2
transgender (“LGBT”) community in Northern Ireland. There has been discussion in
the Northern Ireland media as to whether the Assembly should introduce
legislation, similar to that in England, Wales and Scotland, which would enable
same-sex couples to marry. Motions calling for the introduction of same-sex
marriage in Northern Ireland have been debated in the Assembly on four separate
occasions and on each occasion the motion has been defeated. The last vote occurred
on 2 November 2015 and although the motion achieved a majority of one it was
defeated under the Petition of Concern mechanism in the Assembly.
[3] The third appellant, Ashers Bakery, is a limited company. It does not have
any religious objectives in its Memorandum and Articles of Association although it
is common case that its name derives from a passage in the Bible, Genesis 49:20:
“Bread from Asher shall be rich, and he shall yield royal dainties”. The first and second
appellants are directors of the company. They are Christians who oppose the
introduction of same-sex marriage as they believe that it is contrary to God’s law.
[4] Ashers Bakery provides a customised cake making service. If the customer
provides the bakery with a picture, that image can be scanned and put onto the cake.
There are two members of staff trained to use the computer system and to place the
icing on the cake. At the beginning of week commencing 4 May 2014 the respondent
came to the third appellant’s Royal Avenue premises in Belfast and made a general
enquiry about ordering a cake. He was shown a leaflet by the second appellant
showing various celebration cakes for birthdays, football teams, businesses and
Halloween. The respondent said that he was from a small voluntary group and
wanted a cake with a logo on it. The second appellant told him that if he brought the
logo in it could be scanned and put on the cake. There was no other discussion about
the content of the logo or the nature of the respondent’s group.
[5] The respondent wanted the cake for a private event on Friday 17 May 2014 to
mark the end of ‘Northern Ireland Anti-homophobic Week’ and to mark the political
momentum towards same-sex marriage legislation. On 8 or 9 May 2014 he returned
to the premises and placed an order with the second appellant for a customised cake
for the event. The details of the type of cake and colour of icing were taken and the
respondent then gave the third appellant an A4 sheet with a colour picture of ‘Bert
and Ernie’ (the logo for QueerSpace) with the headline caption, “Support Gay
Marriage”.
[6] On Monday 12 May 2014 the second appellant, after discussion with the first
appellant and her family, telephoned the respondent indicating that the order could
not be fulfilled as the bakery was a “Christian business” and that she should not
have accepted the order. The appellants accept that the order was cancelled because
of their religious beliefs as they are opposed to a change in the law regarding gay
marriage which they regard as sinful. The respondent was given a refund and he
was able to secure a similar cake from another outlet in time for the event.
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2 cases
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Lee v Ashers Baking Company Ltd and Others
...2) [2018] UKSC 49 Before Lady Hale, President Lord Mance Lord Kerr Lord Hodge Lady Black Supreme Court Michaelmas Term On appeal from: [2016] NICA 39 Attorney General for Northern Ireland John F Larkin Attorney General for Northern Ireland (Instructed by Office of the Attorney General for N......
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Suresh Deman and (1) The Industrial Tribunals and Fair Employment Tribunal, Patricia McVeigh and Rene Murray (2) The Equality Commission for Northern Ireland, Evelyn Collins, Joan Harbinson and Bob Collins
...a county court in the exercise of any jurisdiction under any statute and is thus wider than Article 60.” [25] Lee v Ashers Baking Company [2016] NICA 39 and [2018] UKSC 49 represents a high profile example of the use of the Article 61 case stated mechanism in respect of a claimed breach of ......
1 firm's commentaries
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Discrimination: Sexual Orientation vs Religious Belief
...the case of Lee v Ashers Baking Co Ltd [2016] NICA 39, the Northern Ireland Court of Appeal considered how to treat competing characteristics protected under anti-discrimination law, namely sexual orientation and religious belief. The owners of Ashers Bakery (Owners) refused to fulfill an o......
3 books & journal articles
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Northern Ireland Dimensions to the First Decade of the United Kingdom Supreme Court
...vAshers Baking Co Ltd’ (2019) 1 Juridical Review 88; S. Fraser Butlin, ‘Cakes in the Supreme Court’(2019) 78 CLJ 280.150 [2015] NICty 2; [2016] NICA 39.151 n 17 above at [48] and [55].152 ‘Ashers “gay cake” row referred to European Court’ BBC News 15 August 2019 athttps://www.bbc.co.uk/news......
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Exceptional Sexual Harms
...Portsmouth Roman Catholic Diocesan Trust [2012] EWCA Civ 938.Ladele v London Borough of Islington [2010] 1 WLR 955.Lee v McArthur & Ors [2016] NICA 39 (24 October 2016).Maga v Trustees of the Birmingham Archdiocese of the Roman Catholic Church [2010] 1 WLR1441.McFarlane vRelate Avon Ltd [20......
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Lee v Ashers Baking Company Ltd and Others: The Inapplicability of Discrimination Law to an Illusory Conflict of Rights
...of the members of the UCL PublicLaw Group. The author is also grateful for the comments of an anonymous referee.1 [2018] UKSC 49.2 [2016] NICA 39.3 [2015] NICty 2.C2019 The Author. The Modern Law Review C2019 The Modern Law Review Limited. (2020) 83(1) MLR EugenioVelascoIbarraunder Regula......