By Jerome Veldsman
In the December 2016 edition, we discussed Lee v Ashers Baking Company (and its two owners), a judgment of the Court of Appeal in Northern Ireland on 24 October 2016, dealing with conflicting human rights. The case was appealed to the UK Supreme Court (the apex court), which Court delivered its judgment on 10 October 2018.
On 9 May 2014, Lee, a gay man, placed an order with the bakery for a customised cake with the headline caption “Support Gay Marriage“, for an event on 17 May. On 12 May, the two owners, husband and wife, informed Lee that, as the bakery was a “Christian business”, it could not fulfill the order. Lee was given a full refund, and he was able to secure a similar cake from another bakery in time for the event.
On 6 November, Lee sued. The owners’ evidence was that it was their Christian belief that sexual relations between persons should only take place within a monogamous heterosexual marriage, and that marriage should only be between a man and a woman. Accordingly, it would be sinful for them to say or do anything which has the intention or effect of promoting homosexual relations or same sex marriage.
The Court of Appeal in Northern Ireland held in favour of Lee:
“Anyone who applies a religious aspect or a political aspect to the provision of services may be caught by equality legislation … because that person seeks to distinguish, on a basis that is prohibited, between those who will receive their service and those who will not. … What [the bakery and its owners] may not do is provide a service that only reflects their own political or religious belief in relation to sexual orientation“
The Supreme Court upheld the appeal, and held in favour of the bakery and its owners.
The Supreme Court made a distinction between (1) the owners being unwilling to promote homosexual relations or same sex marriage, and (2) the owners being unwilling to supply a cake to Lee. The owners had stated that they would not make such a cake for any customer whatsoever, irrespective of the sexual orientation of that customer. And they were otherwise quite willing to supply a cake to any customer whatsoever, including Lee. Accordingly, the owners did not refuse to fulfil Lee’s order because of his sexual orientation.
The Supreme Court also made a distinction between discrimination on grounds of religious belief or political opinion (1) of the complainant, and (2) of the averred discriminator. The owners had stated that they would make a cake for anyone whatsoever, provided the message on the cake was not in conflict with their Christian belief. Accordingly, the owners did not refuse to fulfil Lee’s order because of his religious belief or political opinion, but because of their religious belief or political opinion. The owners also had the right to freedom of thought, conscience, and religion. And compelling them to supply a cake iced with a message with which they profoundly disagreed would be in conflict with their rights, absent some specific justification (which had not been proven in this case).
How would this case have been decided in South Africa? It may be that the Constitutional Court would find the above distinctions too subtle, and Lee may have succeeded locally.