Ashers Baking produced custom-designed cakes to order. In May 2014 Mr Lee, a gay man, ordered a cake bearing the slogan ‘support gay marriage’ and a picture of the Sesame Street puppets Bert and Ernie to mark the International Day Against Homophobia and Transphobia. Ashers initially accepted his order but subsequently told him that it could not be fulfilled because Ashers was a Christian business, and refunded his money. It was held at first instance and on appeal that he had been directly discriminated against on grounds of sexual orientation. Ashers and its owners, the McArthurs, appealed to the Supreme Court.

Delivering the unanimous judgment on the discrimination point, Lady Hale said that the substantive question was whether the bakery's refusal to supply a cake iced with the message ‘support gay marriage’ because of its owners’ sincere belief that gay marriage was inconsistent with biblical teaching had constituted unlawful discrimination, on grounds either of sexual orientation or of religious belief or political opinion. If the prima facie answer was ‘yes’, then questions arose as to the rights of the bakery and its owners under Articles 9 and 10 ECHR, and what difference, if any, those rights might make to that prima facie answer. She rejected the view that supporting same-sex marriage was ‘indissociable’ from homosexual orientation; people of all sexual orientations supported gay marriage and it was not a proxy for any particular sexual orientation. Nor was the Court of Appeal correct to assume that the message on the cake could only benefit gay or bisexual people; it could also benefit the children, parents, families and friends of gay people who wished to show their commitment to one another in marriage, and the wider community who recognise the social benefits which such commitment can bring. Further, there had been no associative discrimination because the objection was to the message and not to any particular person or persons. The McArthurs’ objection had not been to Mr Lee, but to being required to promote the message on the cake: the less favourable treatment was afforded to the message, not to the man.

As to the issue of Convention rights, though businesses could not discriminate against customers on certain grounds and the McArthurs could not refuse to sell Mr Lee a cake because he was gay or because he supported gay marriage, that did not justify something completely different: namely, 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. The fact that this particular message had to do with sexual orientation was irrelevant to the claim. The appeal was allowed. [Frank Cranmer]