Are Businesses Allowed To Discriminate Against Their Customers?

By Naomi Webber, Writer 27 Oct 2016
Economic, Workplace

A Christian couple have lost their appeal against a Northern Irish court ruling that they shouldn’t have refused to bake a cake celebrating gay marriage.

Earlier this year we reported the case of Lee v Ashers Bakery.  A Northern Irish Court said that a Christian couple who ran a bakery and refused to ice a cake with the slogan ‘Support Gay Marriage’ had discriminated against gay people.

The Christian couple appealed against that decision on the basis of their human right to hold religious beliefs.  Read our post on the human right to hold religious beliefs here.   They have lost their case at the Northern Irish Court of Appeal.

A Recap


Gareth Lee is a gay rights activist living in Northern Ireland. He ordered a cake from Ashers’ Bakery, on which he wished to bear the slogan ‘Support Gay Marriage’ coupled with a picture of Bert and Ernie from Sesame Street. The Christian owners of the bakery refused to make the cake. They said to do so would be to promote same-sex marriage, and this was contrary to their values. Mr Lee won his claim for discrimination.

What about the human right to hold religious belief?


There was then what is known as an ‘appeal by way of case stated’ to the Court of Appeal. This means the judge asked the higher court specific questions. The questions were:

  1. The Discrimination Question: Was the judge correct that Gareth Lee had been discriminated against?
  2. The Human Rights Question: Was the judge correct that the law on discrimination does not breach the couple’s human right to hold and manifest their religious belief that marriage is, according to God’s law, between one man and one woman?

What the judges decided


The couple argued that they did not discriminate against Mr Lee because he was gay. They said they did not even know that he was gay. All they objected to was writing the slogan on the cake.

The Court of Appeal rejected this. They said that the slogan on the cake associated it with the gay and bisexual community and therefore there was direct discrimination on the grounds of sexual orientation.

Human Rights

The couple argued that if the law could be read in this way, it was a breach of their human rights to hold beliefs and manifest their religion (Article 9) and freedom of expression (Article 10).

The Court said that any infringement of the right to hold religious beliefs was justified. They would not allow an exception to discrimination law because of an individual’s religious belief (in this instance, but there are exceptions to discrimination law for religious institutions).

As to freedom of expression, the couple argued that ‘forced speech’ in the form of having to make the cake, was a breach of their right to freedom of expression. This was rejected. The Court said that a baker icing a cake with a political statement, for a particular team or portraying witches on a Halloween cake does not indicate that the baker necessarily supports any of these things.

Where next?


This case was heard by the Northern Ireland Court of Appeal. The final step would be to appeal to the UK Supreme Court. However, as Joshua Rozenburg points out, because of the nature of the appeal (appeal by way of case stated), it will be difficult to appeal to the Supreme Court. Furthermore, the Christian Institute, who are funding the couple, may not have the money to pursue a further appeal to the Supreme Court.

The Court made it clear that the problem was refusing to serve particular customers, not refusing to provide particular types of cakes. They suggested that a way round this would be, in the future, for the bakery to elect not to provide a service that involves any religious or political message and will therefore not be discriminating between views or customers.

So, ironically, the ultimate conclusion is that Ashers’ Bakery are allowed to refuse to provide cakes that say ‘Support Gay Marriage’.

  • A summary of the judgment can be found here.
  • The full judgment is here.
Feature image right © Stefano Bolognini used under Attribution-ShareAlike 3.0 Unported (CC BY-SA 3.0). Feature image left from In text image © Brad Micklea, used under Creative Commons Attribution-NonCommercial-NoDerivs 2.0 Generic Licence. Additional images from Wikimedia commons.

About The Author

Naomi Webber Writer

Naomi completed her law degree at Oxford and LLM at UCL. Since then, she has worked as a research assistant and undergraduate teaching fellow. She will commence pupillage in 2018.

Naomi completed her law degree at Oxford and LLM at UCL. Since then, she has worked as a research assistant and undergraduate teaching fellow. She will commence pupillage in 2018.