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U.K. Supreme Court: Baker Doesn't Have to Place Pro-Gay Marriage Message on Cake

But the ruling isn't based on free speech or religious liberty

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 [1990] 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 [2013] UKSC 73; [2013] 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.

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  • MaverickNH||

    How would posted written notice that cakes will be baked and or messaged only in discretionary accordance with the proprietor's Christian beliefs had made a difference in UK or US?

  • EscherEnigma||

    Democrats have tried that a couple of times, actually. Require written notice, posted in advance, that a given vendor intends to take advantage of a "religious liberty" law.

    In every case Republicans respond by saying that it's discrimination against Christians to expect them to be upfront about their intent to discriminate.

    Fact is, they all know that if they were openly advertising their bias, they would lose straight customers as well as gay customers. Even when you end up in the news for a case like this, most people aren't going to actually know your name and will continue patronizing you even if, were they fully informed, they would avoid you like the plague.

  • ||

    No, we oppose it because it's ridiculous. The stores aren't being required to post a sign for every other thing they won't do. It's purely intended to embarrass Christians for their beliefs, and as thus, is unconstitutional.

  • operagost||

    You got it. And we should also make Jewish business owners display in their window a large yellow star of David emblazoned with the word "JUDEN" so that everyone knows that their intent is to discriminate against the goyim.

  • Martinned||

    I can't comment on US law, but under EU/UK law I don't see how discrimination becomes lawful if you announce it ahead of time.

  • Krayt||

    It's more like a truth in advertising kick in the balls and doesn't affect the lawfulness of it. It would be its own law.

    There's a similar thing with fake abortion clinics that are really anti-abortion counseling services, and religious hospitals which don't perform abortions. But in those cases there are medical issues at stake.

    Here there are just various freedoms tangling. You might even make a case it is about embarrassing one side in speech, and that's not allowed, unlike the medical issues.

  • rsteinmetz||

    I have read many US court opinions and I'm always struck by how much easier to understand and less technical UK court opinions are.

    If the plaintiff were to appeal to the European Court, it seems likely they the UK will brexit before a final decision is made and even if it were maid the decision would be void after Brexit.

  • EscherEnigma||

    It appears to be irrelevant here, but another big difference is that Lee v. Ashers Baking Company, they were actually refusing a specific message on a specific cake.

    In Masterpiece Cakeshop, he refused any wedding cake, which is why his lawyers made the tortured argument that any wedding cake would be, regardless of any actual design details, a "message" in-and-of itself.

    Or to put it another way... if Masterpiece Cakeshop had gotten an order for a Bert and Ernie "Celebrate Gay Marriage" cake, and refused that specific cake, he would have been okay (see the Azucar Bakery case). But since he refused any wedding cake, explicitly because it was for a gay couple, his discrimination against a "message" wasn't seperable.

    All of which leads to why Kennedy half-assed it and punted, only to flee the court before the next case shows up in a year or two.

  • Martinned||

    Actually, IIRC there was some factual dispute about what exactly Masterpiece Cakeshop refused to do or sell, so the majority opinion in the Supreme Court ducked that issue.

  • AmosArch||

    Or to put it another way... if Masterpiece Cakeshop had gotten an order for a Bert and Ernie "Celebrate Gay Marriage" cake, and refused that specific cake, he would have been okay

    >>>>>>>>>>

    Nope, the second they get the chance the activists will move to force shops to bake those sort of cakes. Just like in this case, that forced cake baking was settled law in the UK doesn't mean they kick up their heels, relax, and leave people alone. They wanted to push it further by making you bake the bert and ernie cake. Vindictiveness is the name of the game.

  • ||

    Male homosexuals are the most bigoted, hateful, intolerant people around. If they keep it up, they're going to see a backlash like no one could ever imagine.

  • GabrielSyme||

    >In Masterpiece Cakeshop, he refused any wedding cake, which is why his lawyers made the tortured argument that any wedding cake would be, regardless of any actual design details, a "message" in-and-of itself.

    Would a fashion designer refusing to make clothes for Melania Trump be considered a message in your opinion?

    Here's the Growing List of Designers Who Refuse to Dress Melania Trump

    The act of doing business with someone (or refusing to do business with someone) is in fact an expression.

  • GabrielSyme||

    Another thought that came to mind after I finished my post were anti-boycott laws, like those that make it illegal for businesses to boycott Israel. Those laws are just as much an infringement on free speech and freedom of association as any laws about gay wedding cakes or Melania's wardrobe.

  • Josh R||

    I agree with Dale and Eugene that categorically refusing to make clothes for Melania is conduct that does not implicate the First Amendment. Ditto for generally refusing to do business with Israel (some businesses would implicate the First Amendment such as painting or writing).

    If we accept your viewpoint that the act of doing business is categorically an expression, anti-discrimination laws would almost certainly be unconstitutional in a wide variety of applications, if not facially.

  • GabrielSyme||

    >I agree with Dale and Eugene that categorically refusing to make clothes for Melania is conduct that does not implicate the First Amendment.

    The problem with such an argument is that you're effectively claiming that refusing to do business with Melania is not a form of expression, but I'd be willing to wager that the vast majority of the populace (left and right) would agree that it is in fact a form of expression. The problem is that people want to have their cake and eat it too. They want to ban discrimination, but they also still want to have free expression and freedom of association, but the two are ultimately incompatible.

  • Martinned||

    I haven't read the judgement yet, so I can't comment in detail, but I just wanted to mention three things:

    1. This has nothing to do with the European Court for Human Rights. While in theory anything can be appealed in Strasbourg, I have no idea what the grounds would even be, since the Supreme Court did not resolve this matter on human rights grounds.

    2. Equal protection law in Europe exists against the backdrop of EU legislation. If you have a problem with that, you'd end up in the European Court of Justice in Luxembourg, not in the European Court for Human Rights in Strasbourg. (Notwithstanding the fact that the latter is, confusingly, right across the street from the European Parliament.) However, you can't appeal from a national supreme court to the ECJ. Issues about the interpretation of EU law get sorted while the case is still pending in the Member State court, through a prejudicial question procedure.

  • Martinned||

    3. Unlike US equal protection law, EU law in this area distinguishes between direct and indirect discrimination. Eg. the Directive dealing with sex discrimination says:

    (a) 'direct discrimination': where one person is treated less favourably on grounds of sex than another is, has been or would be treated in a comparable situation;

    (b) 'indirect discrimination': where an apparently neutral provision, criterion or practice would put persons of one sex at a particular disadvantage compared with persons of the other sex, unless that provision, criterion or practice is objectively justified by a legitimate aim, and the means of achieving that aim are appropriate and necessary;

    Indirect discrimination is therefore wider, but also easier to justify. The definition of direct discrimination is quite narrow. The ECJ has held, for example, that a ban on headscarves in the workplace is indirect rather than direct discrimination. Presumably in this case the claimant figured that justification would be a slam dunk given the free speech issues involved, so they had no choice but to go for direct discrimination. But, like I said, I still have to read the judgement.

  • TheAmazingEmu||

    "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."

    I think this is right. "Support gay marriage" is a political belief that isn't just held by gay people. A wedding cake that says "Congratulations Adam and Steve" is almost certainly about a wedding involving a same-sex couple (even if the baker doesn't know the person who ordered the cake is gay, the baker knows that the service being denied is ultimately for a gay couple).

    While not implicated in the UK opinion, I also think there's a greater chance people could think the baker endorses the former message compared to the latter (since the former is an explicit message, the latter is, at best, an implicit statement and arguably not intended to be a statement about any political issue). So the two cases are quite distinct even if superficially similar.

  • Joe_dallas||

    Will Ginsburg continue look to foreign law for guidance on the US constitution?

  • Joe_dallas||

    Guess to late - masterpiece 7-2 with Ginsburg and sotomayor in dissent

  • Rigelsen||

    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.

    Certainly, when you are willing to ignore enough distinguishing facts, any dissimilar activity can be made to look similar.

  • Josh R||

    Perhaps a simple way to distinguish the two cases is Phillips categorically objected to conduct while Ashers objected to a message.

  • y81||

    Refusal to endorse gay marriage is linked pretty indissolubly to religious faith. Forcing people to endorse gay marriage is a form of religious discrimination, the same as forbidding Santeria-style animal sacrifice. It would be a little more defensible if Prof. Volokh and his comrades ever sued devout Jews or Muslims, but they don't.

  • Josh R||

    I know people who refuse to endorse gay marriage because they think homosexuality goes against natural selection.

  • ReaderY||

    Historically, the reason for protecting religious conduct in the United States has not been, as Professor Carpenter has presented, that religious conduct is indistinguishable from status. It is readily distinguishable. Rather, it is that the First Amendment protects the free exercise of religion. And as any gym instructor will inform you, exercise involves conduct, and not status alone.

    One of the difficulties of transmogrifying textual constitutional rights into amorphous one is that textual rights can simply disappear in the process.

    The Court historically maintained a robust distinction between status and conduct, e.g. Robinson v. California.

    Otherwise the Court is conducting a beauty contest, and everything depends on whether the Justices like you or your group. Why shouldn't conduct associated with being a Southerner, or male, or white get the same protections? The answer is obvious. In order to avoid protecting conduct the Court doesn't like, all groups may be equal, but some groups have to be more equal than others.

  • Josh R||

    I don't think the Court has established a different indissociability standard for allegedly favored groups. A tax on wearing yarmulkes is a tax on Jews, but presumably a tax on wearing a cross is a tax on Christians. Categorically refusing to serve a same-sex marriage is discrimination against gays, but presumably categorically refusing to serve an opposite-sex marriage is discrimination against straights.

  • Bob from Ohio||

    "Few federal courts, including the Supreme Court, had any trouble determiming that statutes banning same-sex marriage discriminated against gay people"

    5-4 is "trouble" I'd say.

  • Martinned||

    To be fair, 5 justices also managed to find that a Muslim ban didn't discriminate against Muslims, so having 4 votes against says less about the inherent difficulty of the issue than about the justices in question.

  • Bob from Ohio||

    Tony K. was in the majority in both cases.

    The "Muslim ban " includes Venezuela, famous Muslim majority state.

  • Martinned||

    Well, the 3rd draft did anyway.

  • Josh R||

    The majority in Obergefell strongly implied that statutes which forbid state recognition of same-sex marriage discriminated against gays. But the dissents did not deny that assertion, instead concluding that rational-basis review applied.

  • Toranth||

    The majority in Obergefell also stated that discrimination against marriages for age, consanguinity, or pre-existing partners was perfectly fine - even if those marriages also "embody a love that may endure even past death", and thus deserve legal benefits.

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