The Supreme Court had to consider discrimination on the basis of sexual orientation in the context of the European Convention of Human Rights in two cases. Curiously, the outcome differed, even though the scenarios, at a first glance, seem quite similar.
Hotel Rooms: Bull v Hall
In Bull v Hall, a room was refused to a same-sex couple on the basis of the owner’s religious beliefs that regarded sexual relations outside marriage between a woman and a man as a sin. Although the owner’s Art 9 right to manifest his religion was engaged and interfered with by convicting him for the refusal under domestic equality legislation, Art 9 was not violated. The legitimate aim of protecting the rights of others (in this case the couple’s Art 8 right in conjunction with Art 14 not to be discriminated against on the basis of their sexual orientation) weighed heavier than the Art 9 considerations.
Cakes: Lee v Ashers Baking Company Limited
In Lee, a baking company refused to make a cake with a message supporting gay marriage on the basis of the owner’s religious beliefs. On a first glance, the case looks similar to Bull v Hall, but the outcome was different: Challenges to the refusal were not upheld. The key difference between the cases appears to be that unlike in Bull v Hall, service was not refused altogether - a homosexual person could order a cake from Ashers without a problem, just not a cake with a message supporting gay marriage. It was, in fact, not about the characteristic of the individual person (their sexual orientation), but about the message on the cake. Whether the person who ordered the cake was heterosexual or homosexual was irrelevant. The case was instead framed as one akin to ‘compelled speech’ since both Art 9 and Art 10 protect the baker’s right not to be compelled to express beliefs he does not share. Since no justification for interfering with this right were presented, the baker’s right to refuse the cake was upheld.
Bull and Lee: Truly that Different?
While the difference of refusing service altogether and merely refusing a particular specification of the service is undoubtedly right, it is doubtful whether it should have such a weighty impact, especially in the context of promoting the rights of the LGBTQIA+ community. Groups that have been marginalised not only socially but also through the law for centuries, such as homosexual individuals, need extra protection. It seems out of touch with the spirit of the European Convention, a “living instrument” (Tyrer v United Kingdom) not to go down this path. The European Court of Human Rights has emphasised the protection against discrimination on the basis of sexual orientation more and more (Konstantin Markin v Russia), showing a strong concern over this issue.
Furthermore, the Supreme Court itself has already acknowledged this argument and even used it in Bull v Hall. In the case, Lady Hale stated at [53]:
“Heterosexuals have known this about themselves and been able to fulfil themselves in this way throughout history. Homosexuals have also known this about themselves but were long denied the possibility of fulfilling themselves through relationships with others. This was an affront to their dignity as human beings which our law has now (some would say belatedly) recognised. Homosexuals can enjoy the same freedom and the same relationships as any others. But we should not underestimate the continuing legacy of those centuries of discrimination, persecution even, which is still going on in many parts of the world. It is no doubt for that reason that Strasbourg requires “very weighty reasons” to justify discrimination on grounds of sexual orientation. It is for that reason that we should be slow to accept that prohibiting hotel keepers from discriminating against homosexuals is a disproportionate limitation on their right to manifest their religion.” (emphasis added)
The Supreme Court seems to be struggling with where it wants to stand on striking the right balance in the paradox of tolerance. Popper described it in his book The Open Society and Its Enemies as the paradox of a tolerant society having to be intolerant of intolerance in order to be capable of maintaining its tolerance (Popper, 581). If our modern society is to be truly tolerant regarding the identity of members of the LGBTQIA+ community, then it should be intolerant not only of discrimination as in Bull, but also of discrimination as in Lee. It could be argued that it is not for the courts to decide where to strike the balance on this matter and that this is best left to politics, but in the context of the increased protection of the LGBTQIA+ community under the living instrument of the European Convention on Human Rights and the comments in Bull, such a reasoning seems inappropriate.
Instead, the court should have paid attention in Lee, as it had done in Bull, to the fact that members of the LGBTQIA+ community have experienced discrimination over centuries and that being able to express your sexual orientation freely without being subjected to discrimination is important for your identity. Instead, the Supreme Court chose to disregard this aspect in Lee and instead created “an unfortunate undercurrent throughout the Supreme Court’s decision …: that all protected characteristics are of equal weight … But they are not all equally worthy of protection. Some characteristics are in need of more protection than others because of a long history of discrimination” (Norrie, 95).
The Supreme Court should have chosen to take a stronger stance on the paradox of tolerance in Lee and should not have allowed such intolerant beliefs as those of the baker to be protected. Instead of fostering tolerance, this allows centuries-old discrimination to continue and escape legal repercussions due to a semantic difference. Because while there is theoretical merit in the idea of distinguishing Bull and Lee on the basis that in Bull, the sexual orientation of the person wishing to receive the service was the direct trigger of the action (and in Lee, the same service would have been refused to a heterosexual person), the outcome in the day-to-day life is the same for people belonging to the LGBTQIA+ community: they experience discrimination, being told by other members of society that their identity is still not tolerated or respected. This should not have been deemed acceptable in Lee.
Cases
Bull v Hall [2013] UKSC 73
Lee v Ashers Baking Company Limited [2018] UKSC 49
Tyrer v United Kingdom App No 5856/72 (ECHR, 25 April 1978)
Konstantin Marken v Russia App No 30078/06 (ECHR, 22 March 2012)
Legislation
European Convention for the Protection of Human Rights and Fundamental Freedoms
Books & Articles
Karl Popper, The Open Society and Its Enemies (Routledge 2012)
Kenneth Norrie, ‘Lee v Ashers Baking Co Ltd’ (2019) 1 Juridical Review 88.