This was an appeal by way of case stated from the County Court, where it was held that the appellants directly discriminated against the respondent on the grounds of sexual orientation and on the grounds of religious and political belief.

The facts are well known, but involved the respondent (a gay man) ordering a customised cake with a headline caption “Support Gay Marriage” which was refused by the appellants based on their Christian beliefs.

Of the four questions it was asked to consider, the NI Court of Appeal only answered two. Firstly, it held that there was direct discrimination, as the logo on the cake could only apply to gay and bisexual people and therefore the protected characteristic was sexual orientation. It was also held that it was not necessary to read down or display the provisions of the Equality Act (Sexual Orientation) Regulations 2006 or the Fair Employment and Treatment (NI) Order 1998 to take account of the McArthur's protected right to hold and manifest their genuinely held religious belief.

Practical Lessons

The Court of Appeal’s decision underlines the need to protect religious freedom only to the extent that it does not encroach on the basic rights of others. It is important to note that Ashers Bakery Ltd is a for-profit business in the public sphere and not a private individual and thus different rules must apply to them.

NICA here echoed what the lower court held; that a business cannot refuse to supply goods based on the ground that they do not agree with a particular social opinion. According to the Court, the ‘answer’ is not for a change in the legislation but for the supplier of services to cease distinguishing, on prohibited grounds, between those who may or may not receive the service.

Perhaps surprisingly, some prominent LGBT campaigners have lamented the decision as a “defeat for freedom of expression” and argue that the decision might similarly require a homosexual baker to promote an anti-gay message. Should businesses be able to lawfully refuse a customer’s order even if they have a conscientious objection to it?  Opinions aside, it appears that the answer based on this case is ‘no’.