—Ioanna Tourkochoriti, Lecturer, National University of Ireland, Galway
Should businesses have the right to refuse to provide goods and services to homosexuals on the basis of their freedom of religion? The question has stirred a lot of debate recently in the U.S. on the occasion of the enactment of the Religious Freedom Restoration Act in the State of Indiana. The law foresees that “a governmental entity may not substantially burden a person’s exercise of religion…[unless it] (1) is in furtherance of a compelling governmental interest; and (2) is the least restrictive means of furthering that compelling governmental interest.”. The Indiana statute has stirred controversy as it defines a “person” to include any individual, organization, or “a partnership, a limited liability company, a corporation, a company, a firm, a society, a joint-stock company, an unincorporated association” or another entity driven by religious belief that can sue and be sued, “regardless of whether the entity is organized and operated for profit or nonprofit purposes.” Following social unrest on the potentiality of the law to allow businesses to discriminate invoking freedom of religion, the law was amended adopting an explicit reference to the fact that it does “not authorize a provider to refuse to offer or provide services, facilities, use of public accommodations, goods, employment, or housing to any member or members of the general public on the basis of race, color, religion, ancestry, age, national origin, disability, sex, sexual orientation, gender identity, or U.S. military service”.
The matter is far from settled in the U.S. though as the U.S. Supreme Court held recently that “closely held for profit corporations” enjoy the protection of the Federal Religious Freedom Restoration Act in the famous Hobby Lobby case. Thus a contraceptive mandate, a regulation adopted by the U.S. Department of Health and Human Services under the Patient Protection and Affordable Care Act of 2010, imposing upon a corporation to cover contraception costs for its female employees substantially burdens the freedom of religion of a “closely held for profit corporation”, failing to satisfy RFRA’s least restrictive-means standard.
A decision coming for a County Court in Northern Ireland in the case that has been known as the “Gay Cake Case” may have something to contribute to the debate.
Plaintiff, the representative of QueerSpace, a volunteer led organization for the lesbian, gay bisexual and transgendered community in Northern Ireland, placed an order for a cake for a private event to mark the end of the Northern Ireland anti-homophobia week and to mark the political momentum towards legislation for same-sex marriage. The order included a request to have the cake iced with a graphic of the plaintiff’s own design: ‘support gay marriage’. A few days after the order was placed the bakery called the Plaintiff indicating that the order could not be fulfilled as they are a Christian business. The Court held that this is unlawful discrimination referring to anti-discrimination legislation valid in N. Ireland as well as to article 9(2) of the United Kingdom Human Rights Act 1998 incorporating article 9(2) of the European Convention of Human Rights. Weighing freedom of religion against the application of antidiscrimination law, it found that the limitation of freedom of religion of the provider at stake was necessary in a democratic society in view of the protection of the rights of others.
First, the court referred to the 2006 Equality Act (Sexual Orientation) Regulations of Northern Ireland under which “it is unlawful for any person concerned with the provision of goods facilities or services to the public or a section of the public to discriminate against a person who seeks to obtain or use those goods, facilities or services (a) by refusing or deliberately omitting to provide him with any of them”.
The court noted that the Defendants are not a religious organization but they are conducting a business for profit and notwithstanding their genuine religious beliefs, there are no exceptions available under the 2006 regulations which apply to this case. The court interpreted the exception carved by the Legislature narrowly deferring to its determination of the law.
The Court cited previous case law according to which to permit someone to discriminate on the ground that he did not believe that persons of homosexual orientation should be treated equally with persons of heterosexual orientation would be to create a class of people who were exempt from the discrimination legislation. “To allow discrimination against persons of homosexual orientation because of a belief, however sincerely held, and however based on the biblical text, would be to do just that.”
Second, the Court applied the concept of unlawful discrimination as defined by article 28 of the 1998 Fair Employment and Treatment (Northern Ireland) Order. The order foresees that “it is unlawful for any person concerned with the provision of goods facilities or services to the public to discriminate against a person who seeks to obtain or use those goods, facilities or services by refusing or deliberately omitting to provide him with the goods, facilities or services of the same quality in the same manner and on the same terms as are normal in his case in relation to other members of the public or to other members of that section”. The same order foresees an exception in the application of this article for “goods, facilities or services provided by or on behalf of a religious denomination where the essential nature of the goods, facilities or services requires them be provided (a) only to persons holding or not holding a particular religious belief or (b) in a manner or on terms which, apart from this paragraph would be unlawful by virtue of this Order”. The Court interpreted this exception narrowly, that is as not applying to a commercial contract such as the one at stake.
The Court held that the contract to provide a cake with a graphic in favor of same sex marriage does not mean hat the plaintiff was seeking support or endorsement of his views by the Defendants. The latter were contracted on a merely commercial basis to bake and ice a cake with entirely lawful graphics and to be paid for it.
The Court held also that the plaintiff was discriminated against on the grounds of his political opinions in favor of same sex marriage contrary to article 3(2) of the 1998 order. The appropriate comparator in this instance would be a heterosexual person who places an order for a cake with the graphics of either ‘support marriage’ or ‘support heterosexual marriage”, which would have been provided by the defendant. The Defendants’ disagreement with the plaintiff’s religious belief and political opinion with regard to a change in the law to permit gay marriage and their refusal to provide the services sought treated the plaintiff less favorably contrary to the law.
The Court further examined whether article 9(2) of the Human Rights Act 1998 incorporating article (2) of the European Convention of Human Rights, which limits the right to manifest religion or belief in the attempt to propose an accommodation of respective rights and to make a proportionality assessment. Under article 9(2) of the ECHR limitations to freedom of religion must be prescribed by law, intended to achieve a legitimate objective and necessary in a democratic society. The limitation upon freedom of religion imposed in the case at stake is prescribed by law and is intended to achieve a legitimate objective, the protection of the rights and freedoms of others not to be discriminated against.
In order to evaluate the proportionality of the limitation, the court engages in a balancing act weighing the freedom of religion of the Defendants versus the right to privacy of the Plaintiff to enjoy “his right to private life without unjustified discrimination on the grounds of his sexual orientation”. The limitation is proportionate as it applies only to the commercial sphere if the manifestation of religions beliefs is contrary to the rights of others. The defendants are entitled to hold their genuine and deeply held religious beliefs and to manifest them.
The case points towards the right direction in deciding on the balance between freedom of religion and discrimination law. The court attributed the proper value to the harm to the rights of LGBT persons caused by recognizing a religious exemption to the application of discrimination legislation. It could be a model of reasoning towards interpreting the relevant legal tools in the U.S., state and federal antidiscrimination legislation on the balance with the existing RFRAs. Accommodating religion in this case would mean a serious harm to others’ rights. The Court applies a basic principle of justice, existing in all normative and other systems of morals throughout history, that the liberty of a person stops where the liberty of another person begins. A principle of justice, which is dictated by common sense to every socialized human being, restated more by philosophers from Kant to Rawls and Habermas, in the idea of universalizability, overlapping consensus and the test of the ideal speech situation.
Discrimination in public accommodations is prohibited under Title II of the 1964 Civil Rights act in the U.S. Similar legislation exists at the level of the states. Nevertheless, the debate on how to accommodate religion as policy trade offs is very lively. Decisions pointing in the same direction exist also in U.S. states. The Supreme Court of New Mexico held that a wedding photographer who declined to photograph a celebration of a same-sex wedding performed elsewhere violated the state’s Human Rights Act which prohibits a public accommodation from refusing to offer its services to a person based on that person’s sexual orientation. The Court held that the New Mexico RFRA is not applicable in a suit between private parties referring to the text of the law as well as its structure. The court interpreted the requirement of Sections 28-22-3 of the law that a “government agency” restricts a person’s free exercise of religion as including only the agencies explicitly foreseen in the text, “the state or any of its political subdivisions, institutions, departments, agencies commissions, committees, boards, councils, bureaus or authorities” and as not including the Legislature or the courts. It also held that the structure of the New Mexico Religious Freedom Restoration Act suggests that the Legislature contemplated that the statute would apply only to legal actions in which the government was a party. In parallel, the Colorado Civil Rights Commission has held that a Bakery discriminated against a same-sex couple by refusing to provide a cake for their wedding reception.
It is unclear though following Hobby Lobby whether a religious exemption will be recognized or not under the RFRAs also in the case of discrimination towards LGBT persons. The difficulty with the RFRAs is the raising of the standard of protection for freedom of religion. Only a compelling governmental interest would justify limiting it. The question thus becomes whether the enforcement of discrimination law is such a compelling state interest. As Mark Tushnet notes, although the Supreme Court has made it clear in Hobby Lobby that courts should not interpret the RFRA as allowing for accommodations for religious beliefs about racial inequality, making the elimination of racial discrimination a compelling state interest that outweighs accommodation of religion, there is no mention about discrimination against LGBT persons or women. The danger exists that since to claim an accommodation under the RFRA one must assert that the government places a substantial burden or religions conscience, courts are likely to accept a claimant’s assertion that the burden is substantial in order not to have to assess the merits of the religious claim.
An argument that may help distinguish the Hobby Lobby precedent from cases like the one at stake stressing why eliminating discrimination towards LGBT persons is a compelling interest, is that the harm to the person who seeks the services or goods of someone else might be greater than the harm caused to a person who loses a benefit. A woman can get contraception if she pays for it herself, whereas a same sex couple who wants to get married will not get their cake, or the services of a photographer. Certainly from a perspective that focuses on real freedoms instead of just formal freedoms, the real possibility of exercising a freedom the harm is probably the same. Courts in the U.S. though may be able to see more clearly an analogy between eliminating discrimination against LGBT persons though the application of antidiscrimination legislation in the access to public accommodations, than in the provision of a benefit in the employment setting.
It is a matter of interpretation which value outweighs the other. In the U.S. in many instances, there is a tendency towards protecting freedom of religion more broadly compared to Europe. Although this tendency is to be applauded when no harm to others exists, when direct harm is caused to others the decision is far from straightforward. The weighing must give priority to the civil rights cause of our time, the protection of LGBT rights.
Suggested Citation: Ioanna Tourkochoriti, The Gay Cake Case from Northern Ireland: Possibly Instructive for the U.S.?, Int’l J. Const. L. Blog, June 3, 2015, at http://www.iconnectblog.com/2015/05/the-gay-cake-case-from-northern-ireland-possibly-instructive-for-the-u-s
 Senate Enrolled Act No. 101. For other state RFRAs see State Religious Freedom Act, The Religious Liberty Archive, http://www.churchstatelaw.com/statestatutes/religiousfreedom.asp, archived at http://perma.cc/J6GY-28C7.
 Senate Enrolled Act No. 101 Sec. 8.
 Id. Sec. 7.
 Section 1.IC34-13-9-0 added to the Indiana Code, effective Kuly 2st 2015, available at https://www.documentcloud.org/documents/1699997-read-the-updated-indiana-religious-freedom.html
 Burwell, Secretary of Health and Human Services et al. v. Hobby Lobby Stores, Inc. 573 U.S. __ (2014).
 Id, at pp. 40-45.
 Gareth Lee v. Ashers Baking Co Ltd and Colin McArthur and Karen McArthur,  NICty 2.
 Regulation 5.
 § 43.
 Citing Bull and another v. Hall and another  UKSC 73 at p. 8 (Lady Hale)
 1998 Fair Employment and Treatment (Northern Ireland) Order, Article 28.
 Id, art. 31.
 § 62.
 § 62.
 § 65.
 § 80.
 For an analysis see Ioanna Tourkochoriti, Revisiting Hosanna Tabor v. E.E.O.C., The Road not Taken, 49 Tulsa L.R. 45 (2013).
 42 U.S.C.A. § 2000a-b (1994).
 See Mark V. Tushnet, Accommodation of Religion, Thirty Years On, 38, Harv. J. L. & G., 1 (2015).
 Elane Photography v. Willock, 309 P.3d 53, 53 (N.M. 2013), cert. denied, 134 S. Ct. 1787 (2014)
 Id, at 25.
 See Mark V. Tushnet, supra at 20.
 Mark V. Tushnet, supra at 30.
 See Ioanna Tourkochoriti, The Burka Ban: Divergent Approaches to Freedom of Religion in France and the U.S.A., 20 William & Mary Bill of Rights Journal, 791 (2012).