Bakeries in the United States and the United Kingdom have become the latest sites for contestation about rights. Last December, the US Supreme Court upheld a Christian baker’s right to refuse to bake a cake for the wedding of a gay couple in the Masterpiece Cakeshop Case. The UK Supreme court has now held, on 10 October, that a baker’s refusal to bake a cake with a message in support of gay marriage does not constitute unlawful discrimination.

Ashers Bakery in Northern Ireland offered a customised cake service, which enabled customers to provide pictures or graphics that would be iced on a cake. Gareth Lee, a member of an LGBT organisation called QueerSpace, placed an order for a cake with a graphic that included the characters Bert and Ernie (from Sesame Street) together with the words “support gay marriage”. After initially accepting the order, the bakery refused to fulfil it and offered a refund on the basis that it was a “Christian business”. Lee took his order elsewhere.

Lee claimed that in refusing to fulfil his order, the bakery discriminated against him on grounds of sexual orientation and political belief. He succeeded in both courts leading up to the Supreme Court, with the Court of Appeal deciding that businesses could not, based on their religious beliefs, cherry-pick which services they offered to the LGBT community. At least in respect of the claim of discrimination on the basis of sexual orientation, these decisions were problematic for three reasons. First, they confused the content of the message with the identity of the customer. Second, the decisions would have produced disquieting consequences, as they would equally oblige a gay or lesbian baker to bake a cake with a homophobic message. Third, they failed to acknowledge that implicit in the freedom of speech is the freedom not to speak.

Addressing the claim of discrimination on the basis of sexual orientation, the UK Supreme Court has decisively addressed the first two of those concerns in its judgment. The Court noted that it was clear on the evidence that the bakery discriminated not against the customer, but against the message. The bakery had served Mr Lee before, and was willing to sell any of its other confectionaries (or indeed, a cake without the graphic) to him. Support for gay marriage was not a proxy for a particular sexual orientation, as people of all sexual orientations could support gay marriage. The bakery’s response would also have been identical had a heterosexual man or woman requested the cake with the same message. Acknowledging that it was deeply humiliating to deny a person a service on the basis of their identity, the Court noted that it would, however, do the project of equal treatment “no favours” to “extend it beyond its proper scope”.

The claim of discrimination on the basis of political belief was somewhat different.  While the Court noted that the bakery discriminated on the basis of the “message rather than the man”, there was an indissociable link between the two. This, of course, was clearly right – it would be hard to suggest that those who requested a “support gay marriage cake” did not believe in, or at the least associate with, that cause. It therefore became necessary for the Court to consider the impact on the baker’s freedom of speech.

While undertaking its analysis, the Court went too far in delineating the contours of the freedom of speech in this debate. One of the important arguments was whether a message printed on a cake would be conceived of as speech not just of the customer, but also of the baker. People typically see a sculpture or painting as embodying the message of the sculptor or artist. On the other hand, we are unlikely to assume that a printing shop necessarily associates with the messages of each of the banners it prints. Is the “support gay marriage” cake akin to the painting or the banner? Instead of engaging with this question, the Court chose to sidestep it entirely – noting that by simply “being required to produce the cake”, the bakery was being requested to express a message with which it disagreed.

Baking a cake (with or without a message) does not constitute speech in and of itself. If it did, then by the same logic, the local printing shop could legitimately refuse to print banners bearing messages with which it disagrees. The neighbourhood café could refuse to brew coffee for some prospective customers because of the “expressive” element involved that task. The Court failed to recognise that it also hardly does any favours to the free speech project by extending it beyond its remit.

Put simply, the Court made the mistake of conflating speech with conduct. As Justice Ginsburg noted in her dissenting opinion in Masterpiece Cakeshop: “…for conduct to constitute protected expression, the conduct must be reasonably understood by an observer to be communicative…[the baker] submitted no evidence showing that an objective observer understands a wedding cake to convey a message, much less that the observer understands the message to be the baker’s, rather than the marrying couple’s”. There are, of course, important factual differences between Ashers Bakery and Masterpiece Cakeshop– principally, that the bakery in Colorado refused to sell any wedding cake to the prospective customer, whereas the Northern Ireland one refused to create a customized cake bearing the message requested by the customer. Nevertheless, the UK Supreme Court made the same fallacy as its American counterpart.

In a peculiar turn of events after the judgment was delivered, an agency that was hired to take photographs of the owners of the bakery upon their success in the proceedings refused to complete the project and hand over the photographs. If it is established that they did so based on the sexual orientation or political beliefs of the owners, the photographers could themselves be found liable for unlawful discrimination. The UK Supreme Court’s misguided observations on free speech, however, might just save them.

Dr. Chintan Chandrachud is an Associate at Quinn Emanuel Urquhart & Sullivan, London. The views expressed here are personal.

(Suggested citation: C. Chandrachud, ‘Bittersweet Judgment: The UK Supreme Court in the Ashers Baking Case’, U.K. Const. L. Blog (15th Oct. 2018) (available at https://ukconstitutionallaw.org/))