The Volokh Conspiracy
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In Lee v. Ashers Baking Company, decided yesterday, the United Kingdom Supreme Court concluded that a baker could not be required to write the words "Support Gay Marriage" in icing on a cake ordered by an LGBT rights advocate for a political event. Famed U.K. gay-rights activist Peter Tatchell, among many others, hailed it as "a victory for freedom of expression." The result is certainly consistent with the argument that bakers have a free-speech right not to include written messages on a wedding cake (a view Eugene and I implicitly endorsed in an amicus brief supporting the same-sex couple in Masterpiece Cakeshop v. Colorado Civil Rights Commission). But the reasoning in Lee is something else.
In fact the U.K. Supreme Court avoided the question whether a baker's written-message refusal was affirmatively protected under the free-speech and religious-liberty provisions of the European Convention on Human Rights. Instead, the court unanimously held that the baker's refusal to propound a written pro-same-sex marriage message did not violate the U.K.'s Equality Act 2006, which prohibits discrimination in the provision of goods, facilities or services on grounds of sexual orientation. I'll explain that rationale in this post.
At the same time, libertarian considerations regarding expression and religion informed the Lee decision. And it contains a potentially influential discussion of the U.S. Supreme Court's Masterpiece Cakeshop opinion from this past summer. I plan to say more about that in a future post.
The basic facts in Lee were these: The owners, the McArthurs, are a Christian couple who have operated their bakeries since 1992. They have six shops and employ 65 people. They run their business in accordance with their religious principles, including their traditionalist views of human sexuality and marriage. The plaintiff, Mr. Lee, is a gay man who volunteers for QueerSpace, an LGBT community organization in Belfast. Lee had previously bought cakes from the bakery in Belfast, but he was not personally known to the staff or to the McArthurs. He did not know anything about the McArthurs' beliefs about marriage. Neither they nor their staff knew of his sexual orientation. The bakery, Ashers, offered a "Build-a-Cake" service to customers. Customers could request particular images or inscriptions to be iced onto a cake. A leaflet advertising this service gave various examples of what could be done, but no religious or political restrictions were mentioned.
In 2014, Lee decided to take a cake to a Queerspace party marking the end of anti-homophobia week and celebrating the momentum toward the recognition of same-sex marriage in Northern Ireland. The court's description of the facts continues as follows:
On 8 or 9 May 2014, Mr Lee went into the shop and placed an order for a cake to be iced with his design, a coloured picture of cartoon-like characters "Bert and Ernie", the QueerSpace logo, and the headline "Support Gay Marriage". Mrs McArthur took the order but raised no objection at the time because she wished to consider how to explain her objection and to spare Mr Lee any embarrassment. Mr Lee paid for the cake. Over the following weekend, the McArthurs decided that they could not in conscience produce a cake with that slogan and so should not fulfil the order. On Monday 12 May 2014, Mrs McArthur telephoned Mr Lee and explained that his order could not be fulfilled because they were a Christian business and could not print the slogan requested. She apologised to Mr Lee and he was later given a full refund and the image was returned to him.
The district judge found that, when they refused to carry out the order, the defendants did perceive that Mr Lee was gay and/or associated with others who were gay; but one of the questions raised in the case stated was whether she was correct as a matter of law to make that finding. The Court of Appeal found it unnecessary to answer that question as the District Judge had made no finding that the order was cancelled because Mr Lee was perceived as being gay.
Mr Lee made arrangements with another cake provider for a similar cake which he was able to take with him to the party on 17 May.
Lee sued on the ground that the bakery had discriminated against him based on his actual or perceived sexual orientation. The trial judge awarded him 500 pounds (currently about $800) in damages and the appeals court affirmed. But the U.K. Supreme Court reversed, reasoning:
The District Judge did not find that the bakery refused to fulfil the order because of Mr Lee's actual or perceived sexual orientation. She found that they "cancelled this order because they oppose same sex marriage for the reason that they regard it as sinful and contrary to their genuinely held religious beliefs" (para 43). As the Court of Appeal pointed out, she did not take issue with the submission that the bakery would have supplied Mr Lee with a cake without the message "support gay marriage" and that they would also have refused to supply a cake with the message requested to a hetero-sexual customer (para 11). The objection was to the message, not the messenger. . . . The reason for treating Mr Lee less favourably than other would-be customers was not his sexual orientation but the message he wanted to be iced on the cake. Anyone who wanted that message would have been treated in the same way.
A common response to this sort of analysis is to complain that it sacrifices substantive equality to formalism. Thus, as the U.S. Supreme Court has observed, a tax on yarmulkes would be tantamount to a tax on Jews. Even though not all Jews wear yarmulkes, and not all yarmulke-wearers are Jewish, there is a very close relationship between yarmulke-wearing and Jewishness. Similarly, a ban on same-sex sexual relations discriminates against gay people even though not all homosexuals engage in homosexual sexual activity and not all who engage in such activity are gay. Few federal courts, including the Supreme Court, had any trouble determiming that statutes banning same-sex marriage discriminated against gay people even though not all homosexuals marry, or marry same-sex partners, and even though it's at least theoretically possible that not all same-sex spouses are homosexual. The very close relationship between the activity (homosexual sex or same-sex marriage) and the status (gay or lesbian) demonstrates that discrimination targetting the former is a proxy for discrimination targetting the latter.
The U.K. Supreme Court has an answer to this complaint in its discussion of "indissociability," the doctrine that one basis for discrimination cannot be distinguished from another:
The District Judge also considered at length the question of whether the criterion used by the bakery was "indissociable" from the protected characteristic and held that support for same sex marriage was indissociable from sexual orientation (para 42). This is, however, to misunderstand the role that "indissociability" plays in direct discrimination. It comes into play when the express or overt criterion used as the reason for less favourable treatment is not the protected characteristic itself but some proxy for it. Thus, in the classic case of James v Eastleigh Borough Council  2 AC 751, the criterion used for allowing free entry to the council's swimming pool was not sex but statutory retirement age. There was, however, an exact correspondence between the criterion of statutory retirement age and sex, because the retirement age for women was 60 and the retirement age for men was 65. Hence any woman aged 60 to 64 could enter free but no man aged 60 to 64 could do so. Again, in Preddy v Bull  UKSC 73;  1 WLR 3741, letting double-bedded rooms to married couples but not to civil partners was directly discriminatory because marriage was (at that time) indissociable from hetero-sexual orientation. There is no need to consider that question in this case, as the criterion was quite clear. But even if there was, there is no such identity between the criterion and sexual orientation of the customer. People of all sexual orientations, gay, straight or bi-sexual, can and do support gay marriage. Support for gay marriage is not a proxy for any particular sexual orientation.
. . . It is deeply humiliating, and an affront to human dignity, to deny someone a service because of that person's race, gender, disability, sexual orientation or any of the other protected personal characteristics. But that is not what happened in this case and it does the project of equal treatment no favours to seek to extend it beyond its proper scope
Jack Phillips made a very similar argument in Masterpiece Cakeshop: he did not refuse to make a wedding cake for the gay couple because of their sexual orientation. Instead, he refused to do so because of his opposition to gay marriage. He would have refused to make a cake for a same-sex wedding regardlesss of whether the customer ordering it was heterosexual or homosexual. Simlarly, he would not refuse to serve gay customers for other occasions. Like the McArthurs, he claimed that objected only to the message (support for same-sex marriage), not the messengers (gay customers).
But unlike the McArthurs' argument in Lee, Jack Phillips' argument that he did not discriminate based on sexual orientation was rejected by the Colorado Appeals Court in its opinion (reversed on other grounds by the Supreme Court in Masterpiece Cakeshop):
In these decisions [e.g., Lawrence v. Texas, Obergefell v. Hodges], the Supreme Court recognized that, in some cases, conduct cannot be divorced from status. This is so when the conduct is so closely correlated with the status that it is engaged in exclusively or predominantly by persons who have that particular status. We conclude that the act of same-sex marriage constitutes such conduct because it is "engaged in exclusively or predominantly" by gays, lesbians, and bisexuals. Masterpiece's distinction, therefore, is one without a difference. But for their sexual orientation, Craig and Mullins would not have sought to enter into a same-sex marriage, and but for their intent to do so, Masterpiece would not have denied them its services.
See generally the discussion at pp. 14-23. In this, the Colorado appeals court was consistent with many other state and federal court deisions.
What accounts for these seemingly divergent results?
One possibility is that American and British courts simply have different views about what constitutes discrimination-by-proxy or, as the U.K. Supreme Court called it, indissociability. The American approach is more likely to see proxy discrimination than the U.K. approach.
Another possibility is that important factual differences account for the different outcomes. First, the expressive (rather than sexual orientation) basis for the baker's refusal is more obvious and vivid when he declines to write an explicit written endorsement ("Support Gay Marriage") than when he refuses to bake an otherwise indistinguishable wedding cake that he would bake for anyone else but for its intended use in a gay wedding.
Second, the message of the cake in Lee could be affirmed by anyone, regardless of sexual orientation. It's worth noting that Lee himself was not getting married or seeking a wedding cake for anyone else's same-sex marrage; he wanted the cake for a party. As support for same-sex marriage surpasses 2/3 of the public, it's evident that the vast majority of the people who support gay marriage are not themselves gay. At the same time, same-sex marriage among heterosexuals is almost unheard of, and requests for gay wedding cakes by heterosexuals (even for others' weddings) would be correspondingly rare.
Mere "Support [for] Gay Marriage" can be disentangled from homosexual orientation to a much greater degree than the conduct of marrying a same-sex partner or of seeking a wedding cake for such an event. On this view, Jack Phillips' refusal to bake any cake at all for a gay wedding in Masterpiece Cakeshop is sexual orientation discrimination because it is closely linked to the sexual orientation of his customers. But the McArthurs' refusal to ice the words "Support Gay Marriage" in Lee is not sexual orientation discrimination because it is not much of a proxy for the sexual orientation of their customers.
There's no word yet on whether Lee might appeal to the European Court of Human Rights.