International take on”gay cakes”

An emoji image of Michael Salter
Michael Salter

In The UK and Northern Ireland

Late last year papers were full of decision in Lee v Ashers Baking Company and others. In this case the Supreme Court determined that a Northern Irish baker did not directly discriminate against a gay male when it refused to bake a cake bearing the message “Support gay marriage”. Initially the bakery had accepted the order and taken Mr Lee’s money; however it then contacted him and refunded the fee. The reason behind the refusal was the owner’s Christian belief that were offended by the message the cake carried.

Litigation ensued and the Supreme Court decided that the message was separate from the man; anyone of whatever sexual orientation would not have had the cake made. SO the bakery cannot be said to have directly discriminated as the refusal was not “because” of Mr. Lee’s sexuality: any one would have been refused the cake.

The case has, understandably, resulted in a lot of discussion and commentary, see for instance the excellent analysis by Darren Newman.

In the USA

This is not an issue restricted to the UK and Northern Ireland however. Different jurisdictions are faced with different challenges. In the US state of Colorado, for instance, a baker has issued proceedings against the state for breach of his First Amendment rights when he was found to have discriminated when he refused to bake a cake for a same-sex wedding. Robin Shea of the US Firm Constangy Brooks, Hill and Prophete LLP details the latest steps in the litigation where she reports that an application to strike out the claim was only of limited success and the claim is proceeding

Discrimination by service providers is not frequently litigated, claims of discrimination tend to be more frequently seen in the Employment Tribunals, however those giving and receiving services need to be aware of their obligations under the Equality Act 2010.

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