Lee v Ashers Baking Company Ltd and Others: The Inapplicability of Discrimination Law to an Illusory Conflict of Rights
| Date | 01 January 2020 |
| Published date | 01 January 2020 |
| DOI | http://doi.org/10.1111/1468-2230.12482 |
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Modern Law Review
DOI: 10.1111/1468-2230.12482
CASES
Lee vAshers Baking Company Ltd and Others:The
Inapplicability of Discrimination Law to an Illusory
Conflict of Rights
Eugenio Velasco Ibarra∗
Providers of customised goods and services do not directly discriminate against a customer
when their refusal to fulfil an order is based on their objection to the message requested by the
latter and not on any protected characteristics of the person. This is the conclusion reached by
the Supreme Court of the United Kingdom when faced with a claim of direct discrimination
on grounds of sexual orientation and religious beliefs or political opinions contrary to two
Northern Ireland Statutory Rules against a bakery which objected to incorporating the message
‘Support Gay Marriage’ into a cake. In this case comment it is argued that the Supreme Court
correctly identified the crucial distinction between a message and a person for the purposes
of discrimination law. Each of the two grounds of discrimination at issue is examined and an
explanation for the inapplicability of a finding of discrimination on either is offered.
Does a bakery offering customised goods directly discriminate against a person
on grounds of sexual orientation or of religious belief or political opinion by
refusing to fulfil an order for a cake with the message ‘Support Gay Marriage’?
In Lee vAshers Baking Company Ltd and others,1the Supreme Court of the
United Kingdom answered this question in the negative, overturning the ruling
of the Court of Appeal in Northern Ireland2which had, in tur n, affirmed that
of the County Court in Northern Ireland.3The Supreme Court’s decision
is contained in the judgments of Lady Hale and Lord Mance, both of which
benefitted from unanimous agreement. In this piece, I focus exclusively on
the substantive issue of discrimination to which this litigation rightly owed its
notoriety. Since only Lady Hale’s opinion deals with this aspect of the case, I
will not refer to Lord Mance’s judgement which is devoted to considering the
Supreme Court’s jurisdiction over this matter.
I will argue, in line with the Supreme Court’s conclusion, that the facts
at issue in this case did not support a finding of direct discrimination either
∗Associate Professor at the Department of Law of the Instituto Tecnol´
ogico Aut´
onomo de M´
exico.
A previous version of this piece benefitted from the comments of the members of the UCL Public
Law Group. The author is also grateful for the comments of an anonymous referee.
C2019 The Author. The Modern Law Review C2019 The Modern Law Review Limited. (2020) 83(1) MLR 190–201
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