Baker's stand on same-sex marriage cake cuts deep

Cases

Baker's stand on same-sex marriage cake cuts deep

What if a baker's Christian beliefs prevented him from making a cake in support of same-sex marriage? Would that be discrimination? Are there implications for employment situations relating to the balance between equal opportunity and religious beliefs?

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What if a baker's Christian beliefs prevented him from making a cake in support of same-sex marriage? Would that be discrimination?

Yes, according to a recent case in Northern Ireland. It found a bakery had discriminated on the ground of sexual orientation against a gay man who requested a cake with a message supporting same-sex marriage. 

Although this case involved the provision of goods and services rather than an employment-related matter, it has some implications for employment situations relating to the balance between equal opportunity and religious beliefs.

This article considers how a similar scenario might play out under Australian legislation.

Facts of case


A gay man placed an order with a bakery in Northern Ireland for a cake that contained a photo with the caption “support gay marriage”. The bakery initially accepted the order, but later told the man it could not fulfil the order because the bakery was run as a “Christian business” and its directors were opposed to same-sex marriage.

The bakery gave the customer a refund and he was able to obtain a cake from another shop in time for the planned event (not a wedding).

It was not stated in the judgment whether the customer was aware of the directors’ views on same-sex marriage before he placed his order. However, he had made previous purchases from the shop.

Complaint lodged


The customer lodged a complaint of direct discrimination by the bakery on the ground of his sexual orientation, which was upheld. The bakery appealed against that decision, but the Northern Ireland Court of Appeal dismissed it.

The Court of Appeal found discrimination on the ground of sexual orientation had occurred because the bakery’s directors would not have refused to make a cake with the message “support heterosexual marriage” or even “support marriage”.

Therefore, the customer’s sexual orientation was the reason for its refusal to provide a cake. In this case, the requirement not to discriminate overrode the religious beliefs of the supplier.

What Australian equal opportunity law says


The Australian Human Rights Commission Act 1986 empowers the Australian Human Rights Commission to inquire into and attempt to conciliate employment-related complaints in relation to sexual preference. 

State and territory anti-discrimination or equal opportunity legislation deals with complaints of discrimination in relation to the provision of goods and services. The terminology and individual provisions vary between jurisdictions, for example the terms “homosexuality”, “sexuality”, “sexual preference” and “sexual orientation” are all used.

However, two general conclusions about the various provisions may be drawn:
  • It is unlawful to discriminate against someone by refusing to provide goods or services to him/her, or in the terms on which the goods or services are provided, on a ground prohibited by the Act (eg sexual orientation).
  • It is unlawful to discriminate against an employee or job applicant on a prohibited ground such as sexual orientation, apart from specific exemptions (such as employment in a private household), very small businesses and private education institutions).

Exemption on ground of religious beliefs?


Exemptions from the legislation apply to religious bodies. A typical provision is “any act or practice of a body established to propagate religion that conforms to the doctrines of that religion or is necessary to avoid injury to the religious susceptibilities of the adherents of that religion”.

In addition, s84 of the Victorian Equal Opportunity Act 2010 provides an exemption for discrimination by a person on the basis of his/her religious belief or activity if the discrimination is reasonably necessary to comply with the doctrines, beliefs or principles of the person’s religion. 

As a bakery is not a “religious body”, the first exemption would not apply to the circumstances of the case above. However, in Victoria, the bakery directors may have been able to argue that refusing to supply the type of cake requested by the customer was reasonably necessary to comply with their religious beliefs.

They would have to prove that they genuinely held “Christian” religious beliefs and that complying with those beliefs required them to avoid doing something that could be construed as supporting (or at least not overtly objecting to) same-sex marriage.

It appears that a case in Victoria would come down to whether the relevant court or tribunal decided that the requirement not to discriminate on the ground of sexual orientation was overruled by the exemption provided by s84.

In all other states and territories, it appears that refusal to supply the cake could amount to unlawful discrimination against the customer, but subject to further issues discussed below.

Note that the above comments apply regardless of whether or not same-sex marriage becomes legal in Australia. The Northern Ireland case merely involved making a statement in support of it, whether currently legal or not (unlike in England, Northern Ireland has not legalised same-sex marriage).

Is support of same-sex marriage an “attribute” of sexual orientation?


Some commentators have criticised the Appeal Court’s decision, arguing that being homosexual and supporting same-sex marriage are not the same thing, yet the decision appears to regard the latter as an attribute of the former.

Many heterosexual people support same-sex marriage and some homosexual people oppose it. Therefore, it could be argued that the bakery did not refuse to supply the cake because the customer was gay, but because its directors opposed same-sex marriage.

The directors claimed that they would have also refused to supply a similar cake to a heterosexual customer, and that they supplied cakes to gay customers without the message on them.

These commentators’ view appears to be that discrimination is unlawful if it is against a person, but not if it is against a viewpoint or idea. However, it is also relevant to note that opinions about same-sex marriage are controversial whereas opinions about heterosexual marriage seldom are.

A similar case in Australia might well be decided according to whether expressing support for same-sex marriage was an “attribute or characteristic” of homosexual people. This seems unlikely, as expressing support for it is a viewpoint or opinion that a person may form, not an inherent characteristic of the person.

Another relevant issue is whether the cake supplier would also have refused to supply an identical cake to a heterosexual person who supported same-sex marriage – in which case sexual orientation would probably not be the reason, or dominant reason, for discrimination.

The Northern Ireland judgment did not, however, separate support for same-sex marriage from sexual orientation.

A final issue is whether fulfilling a request to supply a product containing the message “support same-sex marriage” amounted to the supplier making a statement in support of it, or merely responding to the customer’s request as a business transaction. The Northern Ireland judgment took the latter position.

It concluded that the bakery could choose not to supply goods and services with ANY type of religious or political message on them, but could not be selective about which types of messages it was willing to supply, according to the directors’ own beliefs.

Discrimination on the basis of political beliefs?


Another aspect of this case is whether it could have involved discrimination on the ground of political beliefs, which is another ground prohibited under some state and territory anti-discrimination legislation.

It could be argued that if the bakery directors were willing to supply a cake with a message of “support marriage” or “support heterosexual marriage”, but not “support gay marriage”, they would discriminate against a person who held political views that were different to theirs. This assumes that opposition to same-sex marriage is a characteristic of hardline conservative political views and support for it is a characteristic of more “liberal” views. 

The relevance of this issue would turn on whether holding an opinion about same-sex marriage amounted to a “political belief”. The high level of controversy over the issue in Australia may suggest that it would be. But once again, some people with generally “hardline conservative” views may support same-sex marriage and some “liberals” may oppose it.

Lee v Ashers Baking Co Ltd and Others, Northern Ireland Court of Appeal, 24/10/16
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