Content Regulation / Censorship, Political Expression, Religious Freedom
The Case of Hamad Al-Naqi (Kuwait Twitter Blasphemy Case)
Closed Mixed Outcome
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The UK Supreme Court held that anti-discrimination laws in Northern Ireland could not be read as compelling providers of goods, facilities and services to express a message with which they disagree, unless justification is shown for doing so. This case concerned a local business, Ashers Bakery, which had refused to take an order from a gay man for a cake that read “Support Gay Marriage”. The person who asked for the cake, Mr. Lee, successfully brought discrimination claims before the courts in Northern Ireland on the basis that he had been discriminated against on grounds of his sexual orientation, political opinion or religious belief. The Supreme Court disagreed with the lower courts, reasoning that the bakery would have refused to supply this cake to anyone, whatever their personal characteristics. Therefore, there was no discrimination on grounds of sexual orientation. To the extent to which there was discrimination on the basis of political opinion, the Court found no justification for compelling the bakery’s speech in this case.
The case concerned Gareth Lee, a gay man who volunteered with an organization that worked with the LGBT community in Belfast, Northern Ireland. In May 2014, Mr. Lee went to a bakery called Ashers Bakery and placed an order for a customized cake. The cake was for an event to mark the end of “Northern Ireland Anti-Homophobic Week” and to further support the legalization of gay marriage in the country. He specifically asked the bakery to decorate the cake with the organization’s logo alongside the caption “Support Gay Marriage.”
Mr. and Mrs. McArthur, who ran the bakery, were Christians who sincerely believed that (a) the only form of full sexual expression which is consistent with the Bible is that between a man and a woman within marriage, and (b) the only form of marriage consistent with the Bible was that between a man and a woman. They both sought to run the bakery in accordance with their beliefs, but this was not advertised anywhere. Mr. Lee was also not aware of this and he could not find any leaflet or advertising warning him of religious or political restrictions on customized cakes. Days after Mr. Lee made the order, the McArthurs contacted Mr. Lee and informed him that his order could not be accepted because their shop was a “Christian business” and they could not, in good conscience, make the cake.
In November 2014, Mr. Lee brought a claim against the shop and the McArthurs, alleging that the refusal to complete his order had violated the Equality Act (Sexual Orientation) Regulations (NI) 2006 (SORs) and the Fair Employment and Treatment (Northern Ireland) Order 1998 (FETO). He claimed direct and indirect discrimination on grounds of sexual orientation, religious belief or political opinion. The District Court of Northern Ireland held that refusing to complete the order was direct discrimination on all three grounds and awarded Mr. Lee £500.
The bakery and the McArthurs appealed the ruling of the District Court to the Court of Appeal of Northern Ireland. The Court of Appeal served a devolution notice and notice of incompatibility on the Attorney General, who then became a party to the proceedings. On October 24, 2016, the Court of Appeal affirmed the District Court’s decision, holding that Mr. Lee had suffered direct discrimination on grounds of sexual orientation and that it was not necessary to interpret the SORs to take account of the McArthurs’ rights under the European Convention on Human Rights.
The appellants then went on appeal in the Supreme Court of Northern Ireland.
Lady Hale delivered the opinion of the Supreme Court (Court). The judgment considered the sexual orientation and political opinion claims separately.
Sexual Orientation Claim
The Equality Act (Sexual Orientation) Regulations (NI) 2006 (SORs) stated that a person discriminates against another if, on the grounds of sexual orientation, they treat that other person less favorably than he treats or would treat other people. The SORs went on to state that it was unlawful for any person concerned with the provision of goods, facilities or services to the public or a section of the public to discriminate against a person who seeks to obtain or use those goods, facilities or services by refusing or deliberately omitting to provide him with any of them. Mr. Lee had claimed direct discrimination under these provisions.
In relation to this claim, the McArthurs argued that the case did not concern the refusal to provide goods to a customer on the grounds of sexual orientation; rather they refused on the basis of the slogan supporting gay marriage (i.e. it was the message and not the messenger). They argued that while support for same-sex marriage is related to sexual orientation and is supported by many individuals within the LGBT community, the fact that the message included sexual orientation “in the mix” was not enough to establish direct discrimination on the grounds of sexual orientation. Further, they said, that the District Judge erred by comparing the treatment of Mr. Lee with a person of a different sexual orientation who wanted a different message (“support heterosexual marriage”), rather than a person of a different sexual orientation wanting the same message (“support gay marriage”).
The Court noted that the provision was not limited to treating people less favorably on the grounds of the sexual orientation of that person. It was left open that a person may be treated less favorably because of another person’s sexual orientation, and still fall under the law. The Court of Appeal reasoned that “this was a case of association with the gay and bisexual community and the protected personal characteristic was the sexual orientation of that community.” [para. 28] The Court rejected this argument. The evidence was that the bakery both employed and served gay people and treated them in a non-discriminatory way. There was no reason to find that they refused to supply the cake because they thought Mr. Lee was thought to associate with gay people. The reason was simply their religious objection to gay marriage. [para 28]
The Court noted that where the reason for less favorable treatment has something to do with the sexual orientation of some people, does not mean that the less favorable treatment is “on grounds of” sexual orientation. Furthermore, the message in itself did not only benefit gay people, it accrued to the benefit for their families and friends. Lady Hale went on to clarify that “[i]n reaching the conclusion that there was no discrimination on grounds of sexual orientation in this case, I do not seek to minimise or disparage the very real problem of discrimination against gay people. Nor do I ignore the very full and careful consideration which was given to the development of the law in this area […] 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.” [para. 35] The Court concluded that the SORs do not, in the circumstances of this case, impose a civil liability for the refusal to express a political opinion or express a view on a matter of public policy contrary to the religious belief of the person refusing to express that view.
Political Opinion Claim
FETO had similar provisions to those in SORs on discrimination based on political opinion in the provision of goods, facilities and services. The Court found no reason to doubt that support for gay marriage was a political opinion for the purpose of this case. The Court held that the less favorable treatment prohibited by FETO must be on the grounds of the religious belief or political opinion of someone other than the person meting out that treatment. [para 45] The Court held that there was no less favorable treatment on the ground of political opinion because anyone else would have been treated in the same way. The Court reasoned that the objection was not to Mr. Lee because he, or anyone with whom he associated, held a political opinion supporting gay marriage. The objection was to being required to promote the message on the cake. The less favorable treatment was afforded to the message, not to the man. [para 47] The Court also took into account the fact that the bakery was prepared to serve him in other ways.
Nonetheless, in this case, the Court reasoned that the person ordering the cake had a close association to the message on the cake. It could then be argued that they were “indissociable” for the purpose of direct discrimination. The Court found it appropriate, therefore, to consider the impact of the McArthurs’ rights under the European Convention on Human Rights (Convention) upon the meaning and effect of FETO. The Court noted that the rights to freedom of thought, conscience, and religion were protected by Article 9 of the Convention and the right to freedom of expression was protected by Article 10 of the Convention. The Court noted that the right to freedom of expression includes the right not to express an opinion. Here the bakers were being required to produce a cake that would require them to express a message with which they deeply disagreed.
The Court noted that these rights under the Convention were qualified rights, which meant that businesses offering services to the public are not entitled to discriminate on certain grounds. In Lady Hale’s words, “businesses offering services to the public are not entitled to discriminate on certain grounds. Hence, the Asher’s Bakery could not refuse to provide a cake – or any other of their products – to Mr. Lee because he was a gay man or because he supported gay marriage. But that important fact does not amount to a justification for something completely different – obliging them to supply a cake iced with a message with which they profoundly disagreed. they would be entitled to refuse to do that whatever the message conveyed by the icing on the cake – support for living in sin, support for a particular political party, support for a particular religious denomination.” [para 55] The Court concluded that FETO should not be read or given effect in such a way as to compel providers of goods, facilities and services to express a message with which they disagree, unless justification is shown for doing so.
In a postscript, the Court noted the recent judgment of the US Supreme Court in Masterpiece Cakeshop v. Colorado Civil Rights Commission and sought to distinguish the facts of that case from the present one. The Court concluded that “[t]he important message from the Masterpiece Bakery case is that there is a clear distinction between refusing to produce a cake conveying a particular message, for any customer who wants such a cake, and refusing to produce a cake for the particular customer who wants it because of that customer’s characteristics. One can debate which side of the line particular factual scenarios fall. But in our case there can be no doubt. The bakery would have refused to supply this particular cake to anyone, whatever their personal characteristics. So there was no discrimination on grounds of sexual orientation. If and to the extent that there was discrimination on grounds of political opinion, no justification has been shown for the compelled speech which would be entailed for imposing civil liability for refusing to fulfil the order.” [para. 62]
Decision Direction indicates whether the decision expands or contracts expression based on an analysis of the case.
This case has a mixed outcome. The judgment restricts freedom of expression by permitting viewpoint discrimination in the provision of goods, services and facilities in cases where a business owner has to express something with which they disagree. This might make it more difficult for some people to obtain goods or services that convey a message that they associate with (e.g. obtaining cards for gay weddings). However, the Supreme Court also noted that such goods, services or facilities could be compelled where there is a sufficient justification for doing so. This will come down to the balancing of rights in specific cases. The case also expands freedom of expression by recognizing the concept of compelled speech. In short, it recognizes that the right to freedom of expression includes the right not to be compelled to speak against your wishes.
Global Perspective demonstrates how the court’s decision was influenced by standards from one or many regions.
Case significance refers to how influential the case is and how its significance changes over time.
This is a judgment of the Supreme Court of Northern Island and will have binding value on all the lower courts within its jurisdiction.
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