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31 March 2015

Ashers - The end of the beginning

After all the media attention the Ashers case was finally listed for hearing on 26th and 27th March. In the end it took an extra half a day on Monday 30th to conclude proceedings. The Judge has reserved her decision – no expected date was given.

The case was heard at Belfast County Court - Court 12 in the Laganside building. On the first day there was a noticeable police presence, presumably in case of any trouble. Needless to say there was none. David Scoffield, at one time the youngest QC in the UK, represented Ashers. Robin Allen, an English QC with significant Supreme Court experience in employment cases, represented Mr Lee, funded by the Equality Commission. Judge Brownlee heard the case and there were plenty of media in attendance as well as a packed public gallery.

The Facts

The facts were largely agreed and are generally well known. Here are five new things we learned during the case:

  1. Mr Lee had used Ashers before and there was no evidence or suggestion this case was a set up.
  2. Ashers promoted their cake design business with a leaflet including a Halloween cake with a witch on it.
  3. Mrs McArthur, one of the directors of the business, actually took the order for the cake.
  4. Once she saw the slogan she "knew in her heart she could not do it." However she did not decline the cake there and then. The order was placed on a Friday and Mrs McArthur phoned on Monday to decline the order.
  5. Gareth Lee said Mrs McArthur was extremely apologetic in declining the order. He said, "I appreciated the message was difficult and she was being so nice about it."

The Arguments

Below is a summary of the main legal arguments made over the two and a half days.

Mr Lee's case

Mr Allen argued that this is a simple contract case. He suggested that when it comes to commercial relationships, this is a particular sphere of activity that requires to be democratically regulated. To make a contract and then say it is inconsistent with one's beliefs would seriously undermine contract law. Ashers had terms and conditions and the cake Mr Lee asked for was within those clauses.

In his view this was a case of direct discrimination on all three counts –sexual orientation, political opinion and religious belief. Failing that it was an example of indirect discrimination in which human rights arguments were relevant but only with respect to justification.

Mr Allen made clear that there were limits to choice in the commercial realm. He said for example that if a Muslim printer won't print a carton of Mohammad, then he must not print any cartons. If a Roman Catholic printer does not wish to print pro-abortion literature, he must not print any material linked with medical services.

He said that but for the word gay, this order would have been fulfilled. This cake was clearly for someone who was gay, or for someone who associated with gay people and therefore the McArthurs had discriminated against a protected group or their associates.

Ashers' legal team had written to the Equality Commission saying that the McArthur's religious views were contrary to the political views on the cake. Though it was conceded that the McArthurs did not know the religious beliefs or political opinions of Mr Lee, Mr Allen argued that the views of the alleged discriminators were relevant and they had admitted making the decision based on their religious beliefs. He suggested that on the evidence they had declined because of the political opinion of Mr Lee. Therefore discrimination had occurred on both counts.

Mr Allen argued this was a stronger case than the Bull (B&B) case which had found that the aim of the Equality Act 2010 is to make the commercial space free from discrimination based on sexual orientation. Mr Allen argued that Ashers did not advertise themselves as Christian (despite their name) and in fact they put themselves forward as anything but Christian in advertising Halloween cakes with witches on them. Discussing proportionality, he said there were many staff at Ashers with no particular religious affiliation who could have fulfilled the order (though only 2 who could actually decorate the cake).

Ashers Case

Mr Scoffield reminded the court that sexual orientation was the first, and initially only, ground raised by the Equality Commission in the case. Ashers' QC described the Equality Commission's initial letter as a 'knee-jerk' reaction. He said the court must look at why the treatment complained of took place- the reason why question. As he noted many times it was the content of the cake, not the characteristics of the customer that was critical. He argued that the 'appropriate comparator' would be a heterosexual person ordering the same cake. Would the plaintiff have been provided the cake 'but for' his sexual orientation. The answer was clearly no. The McArthurs would not have served anyone a cake with that message. Citing the Ladele case, Mr Schofield argued that if you treat everyone the same way there cannot be direct discrimination.

In a letter dated 27th October 2014, the Equality Commission widened the grounds of the case against Ashers to include political opinion and religious belief. The Ashers had indicated that they had declined the order because of their religious beliefs. Mr Schofield argued this was an unwarranted extension of the law (FETO) that was designed to protect the belief of the customer or employee. Mr Lee's beliefs were not relevant to the decision to produce the cake –they were and remain unknown. To extend the law to include the religious beliefs of the alleged offender would he argued be a major change in the law.

If that argument failed, Mr Scoffield argued that freedom of religion under Articles 9 &10 of the European Convention of Human Rights came into play. Mr Allen argued that companies (like Ashers) do not have convention rights, but Mr Scoffield countered that Mr &Mrs McArthur should not lose convention rights simply by being part of a company.

Mr Schofield suggested that political opinion was the real battleground for the case. He argued that the law protects your political opinion, but not any action arising out of it. This is similar to the law protecting religious belief absolutely (Art 9.1) but placing some limitations on the manifestation of this belief (Art 9.2).

Finally, Mr Scoffield argued that generally you can turn down business as long as it is not for discriminatory reasons. As Mr Lee was not turned down based on his sexual orientation, his religious belief or his political opinion there is essentially no case to answer.


Both barristers spent considerable time dealing with the Brockie case. This was a Canadian case about a printer who declined to print materials for a gay and lesbian advocacy group. The court found that Mr Brockie should have produced the items that had been requested –business cards and letterheads –but that Mr Brockie would have been entitled to refuse to print materials 'espousing a cause' or 'conveying a message'. This is a key case in the area of 'reasonable accommodation' –the Canadian court said that in seeking to protect one right (sexual orientation) you should not totally disregard the other (religion). The Brockie case was cited when the Sexual Orientation Regulations at the heart of this case were being judicially reviewed, making it more relevant than your average Canadian case. Mr Scoffield argued that the making of the cake would have been promoting a cause and therefore following Brockie, the McArthurs were entitled to refuse. Mr Allen argued that the main part of the judgement in Brockie did not help the McArthurs and that the Bull case had essentially superseded it.

The case contained significant and complex legal arguments concerning key freedoms and rights. As Mr Scoffield commented, the Commission's logic is that 'businesses must provide all goods, however offensive to religious beliefs or however gravely they injure conscience.' He continued, 'Forcing individuals on pain of being in court to produce goods promoting a cause with which they strongly disagree, is the antithesis of democracy.' Mr Allen said that while some may not like the law and may indeed strive to change it, it is currently clear and must be certain. To allow someone to renege on a contract because it is inconsistent with your 'subjective beliefs' would undermine contract and commercial law as we know it.

The Judge has much to consider and it came as no surprise that she reserved judgment, probably for a month. The Plaintiff (Mr Lee) is only seeking £500 in damages so the case was heard in the County Court. Given the importance of the issues involved, appeals are possible, if not likely. We are probably only nearing the end of the beginning.