Freedom of Association and Assembly / Protests, Political Expression, Religious Expression
The Case of Mikhlif Al-Shammari
Closed Expands Expression
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Upholding the decision of the District Court, the Court of Appeal in Northern Ireland held that local business Ashers Bakery had directly discriminated against a customer by refusing to accept his order to make a customized cake with a logo of an LGBT organization and a message for supporting the legalization of gay marriage in the country.
The Court held that the anti-discrimination provisions of the relevant national legislation were a proportionate interference with the appellants’ Article 10 right of freedom of expression under the European Convention on Human Rights (ECHR) as permitted under Article 10(2).
The respondent Gareth Lee is a gay man and associated with QueerSpace, an LGBT advocacy organization in Northern Ireland. As part of an event sponsored by the organization to mark the end of “Northern Ireland Anti-Homophobic Week” and to further support the legalization of gay marriage in the country, Lee went to Ashers Bakery and placed an order of a customized cake. He specifically asked the bakery shop to decorate the top portion of the cake with the organization’s logo along with the headline caption, “Support Gay Marriage.”
Days later, the co-directors of the bakery shop contacted Lee, informing him that his order could not be accepted because their shop was a “Christian business” and that they regarded the message of supporting gay marriage as sinful.
In November 2014, Lee brought a civil action against the shop and its co-directors (the “appellants”), alleging that the refusal to proceed with his order had violated the Equality Act (Sexual Orientation) Regulations (NI) 2006 (“the 2006 Regulations”) with respect to the provision of goods and services. The law, in part, makes it unlawful to refuse to provide goods, facilities, or services to the public on the grounds of sexual orientation.
Having determined that the message of support for gay marriage on the cake was a political opinion and that the bakery shop had cancelled the order because such message was contrary to their religious beliefs, the District Court of Northern Ireland found the shop had directly discriminated against the respondent under Regulation 5(1) of the 2006 Regulations. The Court said that that the appellants disagreed with the respondent’s religious belief and political opinion with regard to the change in law to permit same-sex marriage and, accordingly, treated him less favorably by refusing to provide the service he wanted.
The appellants argued that they had a negative right not to be compelled to express the respondent’s view under Article 10 of the ECHR. Finding as a matter of fact that the appellants were not required to support, promote or endorse the respondent’s viewpoint, the Court went on to find that, in any event, the anti-discrimination provisions in the relevant legislation were a proportionate interference permitted under Article 10(2).
The appellants appealed the ruling of the District Court to the Court of Appeal of Northern Ireland.
Justice Morgan delivered the opinion of the Court of Appeal.
The appellants submitted that the case did not concern the refusal to provide goods to a customer on the grounds of sexual orientation, rather it was about the slogan supporting gay marriage, which was contrary to their genuine and deeply held religious beliefs. 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” is not enough to establish direct discrimination on the grounds of sexual orientation. Further, they said, that the district court erred by not taking into account their rights to freedoms of conscience and expression, protected under Articles 9 and 10 of the ECHR respectively. They said they enjoyed a negative right under Article 10 not to be compelled to express a viewpoint contrary to their religious belief, citing the European Court of Human Rights (ECtHR) decision in Gillberg v. Sweden, 34 BHRC 247 (2012) in which the Grand Chamber reaffirmed its recognition of the negative right to freedom of expression.
Respondent Lee submitted that the message “Support Gay Marriage” was a statement of association with those of same-sex orientation and concerned a class of LGBTs that wanted to have a civilly recognised union. Citing a Canadian case, the respondent argued direct discrimination on the grounds of sexual orientation was established by the shop’s refusal to bake the cake because of the message.
The Court firstly held that the respondent’s order was within the normal range of products goods offered by the appellants and therefore fell within parameters of the 2006 Regulations.
Furthermore, the Court agreed with the District Court’s findings that the reason the order was cancelled “was that the appellants would not provide a cake with a message supporting a right to marry for those of a particular sexual orientation.” The case was about association with the LGBT community and the appellants’ refusal of the order was direct discrimination on the grounds of sexual orientation.
Relying on jurisprudence from the ECtHR and the UK Supreme Court with respect to the appellants’ human rights to freedoms of religion and expression, the Court held that the limitations imposed on the appellants were prescribed by law in the form of the 2006 Regulations and the 1998 Order with the legitimate aim of prohibiting discrimination against a minority group because of the beliefs of a majority group on the basis of a protected characteristic.
With regard to the negative right claimed by the appellants under Article 10, the Court of Appeal agreed with the District Court that having simply been asked to print a logo on a cake did not require the appellant to promote or support gay marriage.
The Court went on to address a number of constitutional points raised by the Attorney General in the case, before concluding that it was upholding the judgment of the District Court.
The Court of Appeal rejected the Ashers’ plea to appeal to the U.K. Supreme Court and a subsequent bid by the Northern Ireland Attorney General to refer the case to the Supreme Court was also rejected. The Lord Chief Justice of Northern Ireland said “We do not consider there are exceptional circumstances in this case to require us to re-open proceedings.”
Decision Direction indicates whether the decision expands or contracts expression based on an analysis of the case.
The decision expands expression by reiterating international and ECtHR jurisprudence on Articles 9, 10 and 11 (the rights to freedom of conscience, expression and freedom from discrimination respectively) and the legitimate limitations government can impose upon the exercise of them.
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