Marking the Internal and External Limits of Discrimination Law in Lee v Ashers Baking Company
| Pages | 203-235 |
| Date | 01 April 2021 |
| Published date | 01 April 2021 |
| Author | Emily M L Ho |
| Subject Matter | Derecho Civil |
The Internal and Exter nal Limits of Discrimination Law 203
Marking the Internal and External
Limits of Discrimination
Law in Lee v Ashers Baking Company
E M L H*1
A
One of the most frequently occurring clashes between dierent groups in society
is where religious beliefs concerning homosexuality are manifested in the public
square through positive acts such as preaching against homosexual practices and
omissions such as a refusal to provide goods and service to homosexual individuals.
In cases such as these, discrimination law is expected to intervene to uphold the
value of equality. Lee v Ashers Baking Company was no dierent, involving bakers
who refused to fulfil a customer’s order of a cake iced with the message ‘Support
Gay Marriage’. The Supreme Court decided in favour of the bakers, and in
so doing, analysed and marked the limits of discrimination law — specifically,
the prohibition of direct discrimination. This article seeks to mark these limits,
examining their desirability against the background of domestic and international
jurisprudence and political theory concerning freedoms of religion and expression.
It first examines the internal limits of discrimination law, namely the dierent fact
patterns in which the conventional ‘shape’ of direct discrimination cases has been
permitted to be modified. It then examines the external limits of discrimination
* BA (Cantab), LLM candidate (Harvard), eho@llm22.law.harvard.edu. I am grateful to Professor
Trevor Allan for supervising this paper. All errors remain my own.
Cambridge Law Review (2021) Vol VI, Issue i, 203–235
The Internal and Exter nal Limits of Discrimination Law 204
law, namely the pressure exerted on the reach of discrimination law by alleged
discriminators’ freedoms of religion and expression.
Keywords: discrimination law, direct discrimination, LGBTQ discrimination, freedom of religion,
freedom of expression
I. I
As the equality project advances, diversity in the United Kingdom increases,
and political polarisation becomes starker, clashes become increasingly frequent
between groups of dierent race, belief, gender, and sexual orientation. In these
instances, equality law is expected to intervene. One of the most paradigmatic
clashes is where religious beliefs concerning homosexuality are manifested in the
public square through positive acts such as preaching against homosexual practices,1
and omissions such as a refusal to provide goods and services to homosexual
individuals.2 Lee v Ashers Baking Company3 embodies the latter clash. Ashers Bakery,
a business run according to its owners’ — the McArthurs’— Christian beliefs,
cancelled an order placed by Mr Lee for a cake iced with the message “Support
Gay Marriage”. It did so because, in the owners’ view, fulfilling the order would be
promoting a message that was contrary to their beliefs, violating their conscience.
The type of clash embodied in Lee is particularly challenging because it
presses at the limits of discrimination law, from both the inside and the outside.
The internal limits are faced because Lee presents a unique pattern of alleged
discrimination: the dierential treatment was dealt out irrespective of the specific
customer’s identity, thereby bending the conventional form of direct discrimination
as dierential treatment of persons. To have found discrimination in Lee would
therefore have expanded the range of conduct prohibited. The external limits are
faced because Ashers’ unilateral objection to the order was rooted in their religious
belief that marriage is reserved for heterosexual couples, engaging their freedoms
of religion and expression. The aim of this article is to utilise this special Lee fact
pattern to trace the limits of discrimination prohibitions. These should then be
heeded to maintain the conceptual integrity of discrimination law, and vindicate
the values of a liberal plural society in future discrimination cases.
This article focuses on the impact of the decision in Lee on the application
of the Equality Act 2010 in England and Wales, whose provisions are substantially
1 Hammond v DPP [2004] EWHC 69 (Admin), [2004] 1 WLUK 95.
2 Bull v Hall [2013] UKSC 73, [2013] 1 WLR 3741.
3 Lee v Ashers Baking Company [2018] UKSC 49, [2018] 3 WLR 1294.
The Internal and Exter nal Limits of Discrimination Law 205
analogous to the Northern Ireland provisions applied in Lee.4 In the first Part,
I draw the internal limits of discrimination law by analysing and evaluating the
Supreme Court’s application of the tools of comparator, indissociability to protected
characteristics, associative discrimination, and indirect discrimination. There, I
conclude that the limits of the discrimination concept observed by the Court can
be explained as a sustained focus on the personal characteristics of individuals,
rather than the substance of messages involved, even when the substance relates
to protected personal characteristics. In the second Part, building on the Court’s
I study the tension between discrimination law and freedoms of religion and
of expression, concluding that the Court rightly observed these external limits.
I supplement the Court’s brief reasoning with an analysis of case law in other
jurisdictions and propose a preferable future trajectory for the interaction between
these values for future discrimination cases.5
II. I L
A. L
The Supreme Court’s analysis of direct discrimination firmly refocuses
discrimination prohibitions as protections against dierential treatment of persons,
and clarifies what that means. This was captured by Lady Hale’s terse statement
in her judgment that “[by] definition, direct discrimination is treating people
dierently”.6 This seems a rather obvious point until one confronts the dispute at
the heart of Lee, which raises questions about what it means to discriminate against
a person. Lee claimed he had been treated less favourably on grounds of his sexual
orientation or political beliefs by being refused his order, whilst Ashers claimed
they had not treated Lee less favourably on those grounds but rather objected to
the message requested regardless of Lee’s personal characteristics, and would have
so objected whatever the customer’s characteristics. The Supreme Court decided
in favour of Ashers on both the grounds of sexual orientation and political belief,
4 Fair Employment and Treatment (Northern Ireland) Order 1998 (SI 1998/3162 (NI 21)); Equality
Act (Sexual Orientation) Regulations (Northern Ireland) 2006 (SI 2006/439).
5 At the time of writing, it has been reported that the European Court of Human Rights will soon
hear a claim by Mr Lee on the implications of the UK Supreme Court ruling on his rights under
the European Convention on Human Rights. The court will pronounce on whether the UK has
fulfilled its obligations to protect Mr Lee’s Convention rights. I explore these issues in Section III.
6 Lee (n 3) [23].
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