So they went to the king and spoke to him about his royal decree: ‘Did you not publish a decree that during the next thirty days anyone who prays to any god or human being except to you, Your Majesty, would be thrown into the lions’ den?’ (Daniel 6:12 NIVUK)

The case of Lee v Ashers Baking Company Ltd & Others (2018) is an important case regarding compelled speech in the context of discrimination law.  The leading judgment, by Lady Hale, is short, clearly drafted and uses relatively accessible language.  We recommend reading it.

The Equality Act 2010 provides protection from unlawful discrimination relating to certain characteristics, for example age.  The case considered whether there was unlawful discrimination by the Ashers bakery in cancelling an order by Mr Lee to produce a cake.  The reason for cancelling the order was not who had ordered the cake, or what event it was for, but because of the slogan on the cake, “Support Gay Marriage”.  The impact in practice was minimal, an identical cake was made by another bakery.

The UK Supreme Court confirmed a number of important principles:

  • This was not a case of direct discrimination.  The service had not been refused because of anyone’s sexual orientation.  Support for (or opposition to) same sex marriage is not synonymous with a person’s sexual orientation.
  • Even if it were potentially direct discrimination, the law should not be read in a way to compel providers to express a message with which they disagree, without justification.
  • This can extend to not compelling a company (which may not have human rights) where compelling the company effectively means compelling individuals contrary to their human rights.

The Court’s decision should be welcomed and really should not be seen as controversial by anyone who genuinely supports free speech, which includes freedom from compelled speech.

The decision does not give anyone carte blanche to refuse to provide goods and services in connection with same sex marriage. It provides protection from compelled speech in support of same sex marriage or indeed other campaigns or messages.

The decision and the principles it confirms do not just impact Christians.  The atheist printing company has the same notional ability to turn down a request to print material promoting Christianity as the Christian printing company does if asked to print material promoting atheism.

The decision is particularly important for commercial entities that are not overtly Christian.  Churches and organisations with a Christian ethos have separate additional protections built into the Equality Act.