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NOTES ON PART A
Introduction
This document brings together a summary of the case, with three suggested responses (not
model answers) to the issues outlined by the document on how to approach section A
available at
https://laws.elearning.london.ac.uk/pluginfile.php/121610/mod_page/content/38/Jurisprudenc
ePartA_2020-21.pdf
Two points need to be stressed:
“NB you are not required to discuss the doctrinal legal aspects of the case and no prior
knowledge of human rights or public law is expected. You are required to examine and
analyse how the case is situated within and exemplifies legal philosophical arguments and
implications.”
GENERAL NOTE TO ALL STUDENTS: Please note that the examiners are looking for
evidence of your ability to specifically apply general theory to real life contexts, and not
general knowledge of the relevant theories. The Set Case itself must be your starting point:
scripts which only provide general accounts of legal theories instead of applying them to the
Set Case will have failed to address the question. Likewise, those answers which recount only
a description of Set Case will have failed to address the question. Such answers will therefore
be marked accordingly.”
These points feed into the responses below.
A Summary of: Lee (Respondent) v Ashers Baking Company Ltd and others
(Appellants) (Northern Ireland)
[2018] 3 W.L.R. 1294
The plaintiff, a homosexual man, placed an order with a bakery for a cake which was to be
decorated with the words “support gay marriage”. The owners of the bakery decided that they
could not fulfil the order because of their sincere belief that same-sex marriage was
inconsistent with biblical teaching that marriage could only be between a man and a woman,
and, therefore, cancelled the order and refunded the plaintiff's payment. The plaintiff, with
the support of the Equality Commission for Northern Ireland, brought proceedings against the
bakery and its owners claiming discrimination on grounds of sexual orientation, contrary to
the Equality Act (Sexual Orientation) Regulations (Northern Ireland) 2006 and/or on grounds
of religious belief or political opinion, contrary to the Fair Employment and Treatment
(Northern Ireland) Order 1998 .

The district judge found that the defendants’ refusal to complete the order constituted direct
discrimination against the plaintiff on all three grounds and that the legislation was
compatible with the defendants’ rights under the Convention for the Protection of Human
Rights and Fundamental Freedoms . The defendants appealed by way of case stated and the
Court of Appeal in Northern Ireland served a devolution notice and a notice of
incompatibility upon the Attorney General for Northern Ireland who then became a party to
the proceedings.

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In its judgment the Court of Appeal determined that the plaintiff was a victim of associative
direct discrimination on grounds of sexual orientation and that it was unnecessary to
determine the other issues. Before an order formally dismissing the appeal had been drawn up
the Attorney General for Northern Ireland gave notice to the Court of Appeal requiring it to
refer a devolution issue to the Supreme Court, pursuant to paragraph 33 of Schedule 10 to the
Northern Ireland Act 1998 . The Court of Appeal refused to do so on the basis that the
proceedings before it had already come to an end. The Attorney General for Northern Ireland,
in his own right, then made two devolution issue references to the Supreme Court, pursuant
to paragraph 34 of Schedule 10 of the 1998 Act, on (i) the validity of the relevant legislation
and (ii) whether the Court of Appeal itself should have made a reference. The defendants
applied for permission to appeal to the Supreme Court.

On the references and the application—

Held , (1), considering the issues identified in the first reference, that the
defendants had refused to fulfil the order because of their religious objection to same-sex
marriage not because they perceived the plaintiff to be homosexual or because he associated
with homosexuals; that they would have refused the same order if it had been placed by a
heterosexual person because their objection had been to the message not the person placing
the order; that the Equality Act (Sexual Orientation) Regulations (Northern Ireland) 2006 did
not impose civil liability for the refusal to express a political opinion or express a view on a
matter of public policy contrary to the religious belief of the person refusing to express that
view; and that, accordingly, there had been no discrimination against the plaintiff on grounds
of sexual orientation (post, paras 28, 33–36).

(2) That support for same-sex marriage was a political opinion for the purposes of the Fair
Employment and Treatment (Northern Ireland) Order 1998 ; that the Order protected persons
from discrimination on the grounds of their religious belief or political opinion, not the
religious belief or political opinion of the alleged discriminator; that, consequently, the
defendants’ own religious beliefs could not be a cause of discrimination under the 1998
Order; but that, although the defendants’ objection had been to the message rather than to the
plaintiff, there was a close association between the political opinions of the plaintiff and the
message which he wished to promote on the cake, such that it was arguable that they were
indissociable for the purpose of direct discrimination on the ground of political opinion under
the Order; and that, accordingly, in order to determine whether the Order imposed civil
liability on the defendants in respect of their refusal of the plaintiff's order, it was necessary
to consider the impact of the defendants’ Convention rights upon the meaning and effect of
the 1998 Order (post, paras 41, 43–45, 48).

(3) That the rights to freedom of thought, conscience and religion and freedom of expression,
under articles 9 and 10 of the Convention respectively, were clearly engaged; that those rights
included the right of a person not to be forced to express an opinion with which he or she
disagreed; that to produce a cake, iced in the way the plaintiff wanted, would require the
defendants to express a message with which they deeply disagreed, which would breach their
Convention rights; and that, accordingly, the 1998 Order should not be read or given effect in
such a way as to compel the defendants to express a message with which they disagreed
(post, paras, 49, 53–56, 62).

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RT (Zimbabwe) v Secretary of State for the Home Department (United Nations High Comr
for Refugees intervening) [2013] 1 AC 152 , SC(E) and Commodore of the Royal Bahamas
Defence Force v Laramore [2017] 1 WLR 2752 , PC applied.
(4) That, although article 61(7) of the County Courts (Northern Ireland) Order 1980 normally
made final a decision of the Court of Appeal in Northern Ireland on a case stated
under section 61(1) , the exception under section 42(6) of the Judicature (Northern Ireland)
Act 1978 , permitting appeals to the Supreme Court from decisions involving any question as
to the validity of measures of the Northern Ireland Assembly or its predecessors, applied; and
that, consequently, the fact that the defendants were challenging the 1998 Order's validity if it
failed to protect their rights was sufficient to bring all other issues regarding the 1998 Order
within the scope of the exception under section 42(6) of the 1978 Act (post, paras 69–71).

(5) Determining the issue identified in the second reference, that, following the handing down
of a judgment, the proceedings remained on foot until any contentious issues about the form
of order appropriate to give it effect and about other matters such as costs had been resolved
and a final order issued; that since appeals were, in principle, against orders rather than
judgments there was no incongruity in a conclusion that the Court of Appeal could be
required to make a reference under paragraph 33 of Schedule 10 to the Northern Ireland Act
1998 in the light of a judgment handed down but not yet conclusively formalised; and that,
accordingly, the Attorney General for Northern Ireland's notice requiring the Court of Appeal
to make a reference fell within the terms of paragraph 33 and the Court of Appeal had erred
in refusing to do so (post, paras 77–81).

(6) Granting permission to appeal and allowing the appeal, that article 61(7) of the 1980
Order rendered final the Court of Appeal's decision on the point of law raised in the case
stated, not the regularity of the proceedings leading to that decision; that the Court of
Appeal's failure to admit the Attorney General for Northern Ireland's notice requiring a
reference under paragraph 33, and to await its disposition before ruling on the case stated,
constituted a procedural error in respect of which an appeal had to be possible if significant
injustice would otherwise follow, notwithstanding the finality provision in article 61(7) ; that,
furthermore, had that error not been made the Supreme Court would have considered the
paragraph 33 reference and ruled that the conclusion on the substantive issues set out in the
Court of Appeal's judgment was wrong, requiring it to revise that judgment; that the
procedural error therefore took the case outside the provision of article 61(7) , with the result
that an appeal was competent to the Supreme Court against all aspects of the Court of
Appeal's judgment; and that, accordingly, in the light of the undoubted importance of the
substantive issues, the defendants should have permission to appeal, and, having regard to the
court's conclusions on the substantive issues, their appeal would be allowed in respect of both
the 1998 Order and the 2006 Regulations (post, paras 7, 81, 83–84, 88–90).

Per curiam . It is necessary for a body such as an equality commission to offer its services to
all people who may need them because of a protected characteristic and not to give the
impression of favouring one such characteristic over others (post, para 14).

Decision of the Court of Appeal of Northern Ireland [2016] NICA 39; [2016] HRLR 22
reversed.

This appears to be the key to the intervention of the AG for NI

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“The Attorney General for Northern Ireland questions the validity of both of those
prohibitions, in so far as they impose civil liability for the refusal to express a political
opinion or express a view on a matter of public policy contrary to the religious belief of the
person refusing to express that view.”
[para 3]
This becomes a procedural issue:
“However, this court can only answer the substantive questions if it has jurisdiction to
entertain them, either by way of an appeal from the Court of Appeal in Northern Ireland or by
way of a reference made by the Attorney General for Northern Ireland. Issues arise in relation
to both.”
And is somewhat convoluted:

“the Attorney General for Northern Ireland has power to require any court or tribunal to refer
to this court any devolution issue which has arisen in proceedings before it to which he is a
party. The Attorney General for Northern Ireland gave such a notice after judgment had been
handed down by the Court of Appeal but before its order had been drawn up.”
Why was there an issue with this?
“The Court of Appeal declined to make the reference on the ground that the proceedings were
at an end.
And is resolved in the following way:
“we have concluded that this court does have jurisdiction to determine an appeal brought by
the bakery and its owners, as well as the Attorney General for Northern Ireland's two
references. Accordingly we give them permission to appeal as the substantive questions
raised are undoubtedly of general public importance, not only in Northern Ireland but also in
the rest of the United Kingdom.”
So, there are perhaps two key factors influencing this argument:
1) Balancing religious liberties or rights with those of equality in NI
2) The importance of this case for HR law in the UK as a whole.
We don’t perhaps need to be too concerned with the procedural reasons why the SC allowed
the appeal- but- these two key factors will be at play in any argument about the case.
We can look at some material facts, but they will only be abstracted below to the extent that
they add anything useful to the summary given above from the case report:
“Since 2004, the business has been run through Ashers Baking Company Ltd. The name was
derived from Genesis 49:20: “Bread from Asher shall be rich and he shall yield royal
dainties.” The McArthurs are Christians, who hold the religious beliefs that: (a) the only form
of full sexual expression which is consistent with biblical teaching (and therefore acceptable
to God) is that between a man and a woman within marriage; and (b) the only form of
marriage consistent with biblical teaching (and therefore acceptable to God) is that between a
man and a woman. They have sought to run Ashers in accordance with their beliefs, but this,

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and the biblical connection of the name, has not been advertised or otherwise made known to
the public.” [9]
This is an interesting point in relation to how the general argument develops, and may explain
(in part) why the SC came to the conclusions that it did:
“13. The district judge found that, when they refused to carry out the order, the defendants
did perceive that Mr Lee was gay and/or associated with others who were gay; but one of the
questions raised in the case stated was whether she was correct as a matter of law to make
that finding. The Court of Appeal found it unnecessary to answer that question as the district
judge had made no finding that the order was cancelled because Mr Lee was perceived as
being gay.”
There is, in other words, no ruling by the trial court that the bakery refused to bake the cake
because Mr Lee was seen to be openly gay. Perhaps if there had been a ruling on this fact, the
case would have been decided differently.
This connects with the following point:
22. The district judge did not find that the bakery refused to fulfil the order because of Mr
Lee's actual or perceived sexual orientation. She found that they “cancelled this order because
they oppose same sex marriage for the reason that they regard it as sinful and contrary to their
genuinely held religious beliefs”: para 43. As the Court of Appeal pointed out, she did not
take issue with the submission that the bakery would have supplied Mr Lee with a cake
without the message “support gay marriage” and that they would also have refused to supply
a cake with the message requested to a heterosexual customer: para 11. The objection was to
the message, not the messenger.

The case was argued as one of direct discrimination- but- counsel for the defendants argued
that the reason for the refusal to provide the plaintiff with his cake was not to do with his
sexual orientation- but the message on the cake. In other words- anyone, gay or straight-
would have been refused the cake.
Was the message “indissociable” from the protected characteristic -- that support for same
sex marriage was indissociable from sexual orientation? No, because anyone- gay or straight-
could support gay marriage. However, this misunderstands the role that “indissociability”
plays in direct discrimination. It comes into play when the express or overt criterion used as
the reason for less favourable treatment is not the protected characteristic itself but some
proxy for it:
“Thus, in the classic case James v Eastleigh Borough Council [1990] 2 AC 751 , the criterion
used for allowing free entry to the council's swimming pool was not sex but statutory
retirement age. There was, however, an exact correspondence between the criterion of
statutory retirement age and sex, because the retirement age for women was 60 and the
retirement age for men was 65. Hence any woman aged 60 to 64 could enter free but no man
aged 60 to 64 could do so. Again, in Preddy v Bull (Liberty intervening)> [2013] 1 WLR
3741 , letting double-bedded rooms to married couples but not to civil partners was directly
discriminatory because marriage was (at that time) indissociable from heterosexual

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orientation. There is no need to consider that question in this case, as the criterion was quite
clear.”
These cases can be distinguished:
“People of all sexual orientations, gay, straight or bisexual, can and do support gay marriage.
Support for gay marriage is not a proxy for any particular sexual orientation.” (para 25)
Against this argument, is this a case of associative discrimination? This is an interpretation of
the 2006 which “leaves open the possibility that a person may be less favourably treated
because of another person's sexual orientation. The question is how far that possibility
extends.” The Court of Appeal thought that this was the case. The SC disagreed: “there was
no evidence that the bakery had discriminated on that or any other prohibited ground in the
past. The evidence was that they both employed and served gay people and treated them in a
non-discriminatory way. Nor was there any finding that the reason for refusing to supply the
cake was that Mr Lee was thought to associate with gay people. The reason was their
religious objection to gay marriage.” (para 26)

The key cases are 29. Coleman v Attridge Law (Case C-303/06) [2008] ICR 1128 , and
English v Thomas Sanderson Blinds Ltd [2009] ICR 543 , but note how the SC stresses Laws
LJ’s dissent

This is how this point is resolved:

“34. This was a case of associative discrimination or it was nothing. It would be unwise in
the context of this particular case to attempt to define the closeness of the association which
justifies such a finding. Not only did the district judge not make such a finding in this case,
the association would not have been close enough for her to do so. In a nutshell, the objection
was to the message and not to any particular person or persons.”

Baroness Hale goes on to say:

35. In reaching the conclusion that there was no discrimination on grounds of sexual
orientation in this case, I do not seek to minimise or disparage the very real problem of
discrimination against gay people. Nor do I ignore the very full and careful consideration
which was given to the development of the law in this area, to which Mr Allen drew our
attention at considerable length. Everyone, as article 1 of the Universal Declaration of Human
Rights put it 70 years ago is “born free and equal in dignity and rights”. Experience has
shown that the providers of employment, education, accommodation, goods, facilities and
services do not always treat people with equal dignity and respect, especially if they have
certain personal characteristics which are now protected by the law. It is deeply humiliating,
and an affront to human dignity, to deny someone a service because of that person's race,
gender, disability, sexual orientation or any of the other protected personal characteristics.
But that is not what happened in this case and it does the project of equal treatment no
favours to seek to extend it beyond its proper scope.”

It follows that:

36. It follows that there is no need to consider whether it is necessary to read down the 2006
Regulations to take account of the defendants’ Convention rights or indeed to consider
whether there was power to make them. The 2006 Regulations do not, at least in the

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circumstances of this case, impose civil liability for the refusal to express a political opinion
or express a view on a matter of public policy contrary to the religious belief of the person
refusing to express that view.

The SC then turned to consider the political opinions claim. Note the context:

“37. Protection against direct discrimination on grounds of religious belief or political

opinion has constitutional status in Northern Ireland. The Government of Ireland Act
1920 (10 & 11 Geo 5, c 67), which established the Parliaments of Northern and Southern
Ireland, prohibited both Parliaments from making any law which prohibited the free exercise
of religion, gave preference, privilege or advantage, or imposed disability or disadvantage on
account of religious belief and provided that any such law would be void: section 5 . This was
to protect the Protestant minority in the South and the Roman Catholic minority in the
North.”

The main point here is that Fair Employment and Treatment (Northern Ireland) Order 1998 as
“there was a close association between the political opinions of the plaintiff and the message
which he wished to promote on the cake, such that it was arguable that they were
indissociable for the purpose of direct discrimination on the ground of political opinion under
the Order; and that, accordingly, in order to determine whether the Order imposed civil
liability on the defendants in respect of their refusal of the plaintiff's order, it was necessary
to consider the impact of the defendants’ Convention rights upon the meaning and effect of
the 1998 Order.”
Thus, the human rights point is engaged:
“47. It may well be that the answer to this question is the same as the answer to the claim
based on sexual orientation. There was no less favourable treatment on this ground because
anyone else would have been treated in the same way. The objection was not to Mr Lee
because he, or anyone with whom he associated, held a political opinion supporting gay
marriage. The objection was to being required to promote the message on the cake. The less
favourable treatment was afforded to the message not to the man. It was not as if he were
being refused a job, or accommodation, or baked goods in general, because of his political
opinion as, for example, was alleged to have happened in Ryder v Northern Ireland Policing
Board . The evidence was that they were quite prepared to serve him in other ways. The
situation is not comparable to people being refused jobs, accommodation or business simply
because of their religious faith. It is more akin to a Christian printing business being required
to print leaflets promoting an atheist message.
48. However, there is here a much closer association between the political opinions of the
man and the message that he wishes to promote, such that it could be argued that they are
“indissociable” for the purpose of direct discrimination on the ground of political opinion.
This would not always be the case, because the person ordering a particular message may in
fact be indifferent to it. But in this case Mr Lee was perceived as holding the opinion in
question. It becomes appropriate, therefore, to consider the impact of the McArthurs’
Convention rights upon the meaning and effect of the 1998 Order.”

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It becomes an Article 9 argument:

“49. The Convention rights to freedom of thought, conscience and religion and freedom of
expression are clearly engaged by this case. Article 9.1 provides that
“Everyone has the right to freedom of thought, conscience and religion; this right includes
freedom to change his religion or belief and freedom, either alone or in community with
others and in public or private, to manifest his religion or belief, in worship, teaching,
practice and observance.”
Article 9.2 permits limitations on the freedom to manifest one's religion or beliefs but not on
the freedom to hold them.”

They key point is that the case law establishes that “obliging a person to manifest a belief
which he does not hold has been held to be a limitation on his article 9.1 rights.”
The key authorities are Buscarini v San Marino (1999) 30 EHRR 208 and Commodore of the
Royal Bahamas Defence Force v Laramore [2017] 1 WLR 2752 .
This was supported by reference to Article 10: “The freedom not to be obliged to hold or to
manifest beliefs that one does not hold is also protected by article 10 of the Convention.” But
note, “the right to freedom of expression does not in terms include the right not to express an
opinion but it has long been held that it does. See RT (Zimbabwe) v Secretary of State for the
Home Department (United Nations High Comr for Refugees intervening) [2013] 1 AC
152 and Buscarini v San Marino 30 EHRR 208 , Lord Dyson JSC held that the principle
applied as much to political opinions as it did to religious belief: “Nobody should be forced to
have or express a political opinion in which he does not believe”: para 42. Interestingly,
counsel for the defence made reference to the American case law: and the idea of “compelled
speech” [which] has been developed principally in the United States as a result of the First
Amendment.” Thus:
“There is indeed long-standing Supreme Court authority for the proposition that “the right to
freedom of thought protected by the First Amendment against state action includes both the
right to speak freely and the right to refrain from speaking at all.”
Baroness Hale’s conclusion:
“55. Articles 9 and 10 are, of course, qualified rights which may be limited or restricted in
accordance with the law and in so far as this is necessary in a democratic society in pursuit of
a legitimate aim. It is, of course, the case that businesses offering services to the public are
not entitled to discriminate on certain grounds. The bakery could not refuse to provide a
cake—or any other of their products—to Mr Lee because he was a gay man or because he
supported gay marriage. But that important fact does not amount to a justification for
something completely different—obliging them to supply a cake iced with a message with
which they profoundly disagreed. In my view 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 is irrelevant to the 1998 Order
claim.”

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The SC refers to Masterpiece Cakeshop Ltd v Colorado Civil Rights Commission (2018) 201
L Ed 2d 35 and concludes:
“The important message from the Masterpiece Bakery case is that there is a clear distinction
between refusing to produce a cake conveying a particular message, for any customer who
wants such a cake, and refusing to produce a cake for the particular customer who wants it
because of that customer's characteristics. One can debate which side of the line particular
factual scenarios fall. But in our case there can be no doubt. The bakery would have refused
to supply this particular cake to anyone, whatever their personal characteristics. So there was
no discrimination on grounds of sexual orientation. If and to the extent that there was
discrimination on grounds of political opinion, no justification has been shown for the
compelled speech which would be entailed for imposing civil liability for refusing to fulfil
the order.”

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Lee v Ashers Baking Company and Dworkin’s Jurisprudence

This essay will argue that whilst certain themes from Dworkin’s jurisprudence can be found
in Lee, it is not a hard case as it does not exemplify arguments that use principles to resolve
gaps in the law. Nor is it exemplary of a Herculean feat of principled constitutional
reasoning. From a Dworkinian perspective, we can certainly see how the judges attempt to
constructively interpret human rights law, and this essay will make some reference to the
concept of the community of principles to make sense of the case. However, the conclusion
will be that the case actually provides more of a challenge to Dworkin’s jurisprudence, than a
clear illustration of its principles. If anything, the case shows the Supreme Court [SC]
carefully avoiding questions about the structure of Human Rights law, the peculiar situation
of Northern Ireland [NI] and a constitutional settlement coming under increasing political
strain.
From the perspective of Dworkin’s jurisprudence, we could ask whether or not Lee appears
as a hard case to which the courts come up with the right answer to a legal dispute. We could
further our analysis by asking to what extent we can see Lee as evidence of Dworkin’s notion
of a community of principle- in other words- how do the legal principles of Lee fit with the
broader principles of a political community/ However, before we think about the relevance of
the idea of the community of principles, it is important to ask whether or not other
Dworkinian principles are relevant to the case.
At first regard Lee certainly looks like a hard case as it presents a difficult dilemma. Whose
rights will the court support? Those of the Lee, or those of Asher’s Bakery (Ashers)?
However, on a closer examination, it is not so clear that Lee is a hard case – in the sense that
Dworkin uses the term. Indeed, quite contrary to a hard case, where a judge must use
principles to develop new common law rules, the rules in Lee are relatively clear. It is not a
case like Riggs v Palmer, then. This is not to suggest, however, that the case does not present
some evidence for Dworkin’s theories of adjudication.
What, then, are the main issues addressed by the case? There are perhaps two key concerns:
how to balance religious liberties or rights with those of equality in NI and the importance of
this case for HR law in the UK as a whole. As this is not a public law essay, we will not be
too concerned with the procedural reasons why the SC allowed the appeal. The focus of our
argument will be on the principles of human rights law, and the relevance of this case for the
UK as a whole.
The bakers refused Mr Lee’s request to provide him with a cake with a message in icing on it:
‘support gay marriage’. The case was argued as one of direct discrimination- but- counsel for
the defendants argued that the reason for the refusal to provide the plaintiff with his cake was
not to do with his sexual orientation- but the message on the cake. In other words- anyone,
gay or straight- would have been refused the cake. In other words, the case has a very
peculiar set of facts. The job of the court was to coordinate the rules and principles of human
rights law to resolve this point. One of the pressing issues was: could it be said that the
message was “indissociable” from the protected characteristic -- that support for same sex
marriage was indissociable from sexual orientation? The court answered in the negative.
They applied two main authorities: James v Eastleigh and Preddy v Bull, and distinguished
them on the facts:

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“People of all sexual orientations, gay, straight or bisexual, can and do support gay marriage.
Support for gay marriage is not a proxy for any particular sexual orientation.”
This does not look like the kind of argument that would suggest that this is a hard case like
Riggs v Palmer. In Riggs, it is clear to see how the application of a principle- that no one
should benefit from their own wrongdoing- was applied to ‘construct’ the criminal law to
prevent a murderer inheriting under the will of his victim. Lee, however, is not an argument
of principle. It is, more properly, based on the distinction of cases on their facts. Moreover,
the range of argument is not sufficient to suggest that this matter is dealt with as one of ‘high’
principle. It is dealt with through a more mundane act of legal reasoning.
A second argument was considered. Is this a case of associative discrimination? This is an
interpretation of the 2006 legislation which “leaves open the possibility that a person may be
less favourably treated because of another person's sexual orientation.” However, the SC
stressed that the key question was “how far” this principle might extend. The Court of Appeal
thought that this was associative discrimination, but the SC disagreed: “there was no evidence
that the bakery had discriminated on that or any other prohibited ground in the past….Nor
was there any finding that the reason for refusing to supply the cake was that Mr Lee was
thought to associate with gay people.” (para 26) So, this point is dealt with rather like the one
above. It is a question of fact, not of principle. The SC engaged with two authorities:
Coleman v Attridge Law (Case C-303/06) [2008] ICR 1128 , and English v Thomas
Sanderson Blinds Ltd [2009] ICR 543. The SC deliberately avoided resolving a matter of
principle, asserting that “[i]t would be unwise in the context of this particular case to attempt
to define the closeness of the association which justifies such a finding.” This meant that the
SC could also refuse to deal with another problematic interpretation of human rights
principle: it was unnecessary to “read down the 2006 Regulations to take account of the
defendants’ Convention rights or indeed to consider whether there was power to make them.”
These issues are effectively put off for another day!

The SC then turned to consider the political opinions claim, and deal with it in a similarly
robust manner. The main point relates to the Fair Employment and Treatment (Northern
Ireland) Order 1998. As “there was a close association” between Lee’s political opinions and
the message that he wanted on the cake, it was arguably the case that the message and his
views were “indissociable for the purpose of direct discrimination on the ground of political
opinion” under the 1998 order. This engages the human rights point is engaged. But the way
that the court approaches this issue takes us back to the facts of the case: “The objection was
not to Mr Lee because he, or anyone with whom he associated, held a political opinion
supporting gay marriage. The objection was to being required to promote the message on the
cake. The less favourable treatment was afforded to the message not to the man.” This means
that “the situation is not comparable to people being refused jobs, accommodation or business
simply because of their religious faith.” It does, however become an Article 9 argument.

There are two authorities: Buscarini v San Marino (1999) 30 EHRR 208 and Commodore of
the Royal Bahamas Defence Force v Laramore [2017] 1 WLR 2752. They establish a rather
simple point: that “obliging a person to manifest a belief which he does not hold has been
held to be a limitation on his article 9.1 rights.” This is then supported by reference to Article
10: “The freedom not to be obliged to hold or to manifest beliefs that one does not hold is
also protected by article 10 of the Convention.” But note, “the right to freedom of expression
does not in terms include the right not to express an opinion but it has long been held that it
does. The SC relied on two more authorities: RT (Zimbabwe) v Secretary of State for the

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Home Department (United Nations High Comr for Refugees intervening) [2013] 1 AC
152 and Buscarini v San Marino 30 EHRR 208. Interestingly, counsel for the defence made
reference to the American case law: and the idea of “compelled speech” Thus: “there is
indeed long-standing Supreme Court authority for the proposition that “the right to freedom
of thought protected by the First Amendment against state action includes both the right to
speak freely and the right to refrain from speaking at all.”

This argument certainly shows the court aligning the principles of human rights law and the
law of NI. One might argue that it does provide evidence of something like constructive
interpretation, with the judges attempting to fit together the principles to make of the law ‘the
best possible example’ of itself. This may accord with the idea that the law balances human
rights and religious rights, but the facts of the case make it hard to generalise.
Our argument returns to Dworkin’s point about the community of principle. The complex
point decided by the SC relates to the operate of the Human Rights Act within the context of
Northern Ireland. One might say that the case therefore shows the SC endeavouring to apply
consistent human rights law to the UK as a whole. The problem is that NI has a very specific
and troubled history. Unless NI is seen as an exception, it is difficult to see how it is
exemplary of the UK as a whole: in particular, it might be that the court came to the
conclusion that it did because of this political history- one where religion has been central to
civil conflict and an on-going civil war: “The Government of Ireland Act 1920, passed after
the liberation war, and the Irish civil war, established the Parliaments of Northern and
Southern Ireland, prohibited both Parliaments from making any law which prohibited the free
exercise of religion, gave preference, privilege or advantage, or imposed disability or
disadvantage on account of religious belief and provided that any such law would be void.”
The point of this Act was to “protect the Protestant minority in the South and the Roman
Catholic minority in the North.”

The specific political and constitutional history of NI means that this case raises a very
peculiar point which Dworkin’s theory of the community of principles may not have
confronted. To what extent is it necessary for exceptions to be made to preserve something
like a community of principles? It may be, from this perspective, that the best way of thinking
about this case is – in Dworkinian terms- that it is policy decision. In other words, not a major
piece of principled constitutional reasoning, but a compromise to preserve a political
settlement that is coming under increasing strain.

This essay has argued that Dworkin’s theories of adjudication and legal interpretation allow
us to gain insights into Lee. Whilst Lee is perhaps not a hard case, we can see Lady Hale’s
approach as informed by a constructive interpretation of the law, that seeks to make it the
‘best it can be’ by following a line of precedents, the congruent statutory principles, and the
broader location of in human rights law and equalities law. However, it is not perhaps an
exemplification of the kind of principled constitutional litigation with which Judge Hercules
would engage. If anything, it is a case that shows the SC respecting the peculiarities of NI’s
history, by engaging in some rather narrow reasoning enabled by the facts of the case.

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Lee v Ashers Baking Company and Natural Law

This essay argues that there is no clear sense in which medieval political theology or natural
law is relevant for understanding this case. Whether or not Finnis’ natural law theory is
relevant is a second question. If it is, then it is necessary to show that natural law does not
inform judicial reasoning in Lee—and—at best can help us frame a response to the issues
raised by the case. It is also entirely open to question as to whether Finnis’ version of natural
law theory could help us to gain any real insight into Lee. Arguably, a creative application of
themes drawn from Finnis might help- but- in its ‘original’ form, Finnis’ thinking is less than
helpful.

Lee raised two key concerns: how to balance religious liberties with those of equality (and
the prohibition on discrimination) in NI, and the importance of this case for HR law in the
UK as a whole. As this is not a public law essay, we will not be too concerned with the
procedural reasons why the SC allowed the appeal. The bakers refused Lee’s request to
provide him with a cake with a message in icing on it: ‘support gay marriage’. The SC
determined that Archers were within their rights to refuse to provide the cake with the iced
message.
At first regard, this might seem that the courts were championing religions values, and
privileging them over the prohibition on discrimination. As such, this might find some
support in Finnis’ understanding of the importance of religion, and ‘straight’ sexuality to the
definition of the basic good that should define the common good that law should support.
Whilst this is not an unreasonable point, the facts of the case were such that it makes a poor
illustration of any general principle. On the facts, the SC found that there was no
discrimination against Lee as such, and that Article 9 and Article 10 protected Archer’s right
not to be compelled to ‘speak’ in a way that conflicted with their religious opinions. Had
there also been direct discrimination against Mr Less, the case may have come to a very
different conclusion. On the facts, the court had to come to this conclusion because of the
findings of the trial judge. In other words, it is hard to see – except very indirectly- how this
case can be understood from Finnis’ perspective.
However, we can still use Finnis’ jurisprudence to ask some general questions about how we
interpret the case. The best way into Finnis is to understand that his jurisprudence begins
with a moral argument. Finnis wants to persuade us that a moral starting point is the correct
one. Indeed, the only possible moral starting point for moral thinking to make sense.
It is possible to get some purchase on this idea if you bring to this argument the fact that
Finnis is himself a devout Catholic. A devout Catholic is likely to argue that Catholicism
provides the correct view point from which one is to interpret the world and make moral
claims.

In terms of the ruling in Lee, it certainly seems to suggest that the courts will protect ‘deeply
held’ religious opinions. It is the kind of outcome that Finnis himself might applaud.
However, there are other aspects to this case, and indeed to Finnis’ jurisprudence, that means
that we may need to move to a more critical position. How is it possible to judge – or even to
prioritise the principle that forbids discrimination against a principle that allows the
expression of religious views that are discriminatory?

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Argubaly, Finnis’ natural law theory is too biased to present us with an answer. He dismisses
the idea that a gay relationship is a viable as a straight one- and- has a fairly low opinion of
human sexual expression. At the same time, Finnis does want us to think about community
and the common good. The idea of society – or societas- is at the heat of his jurisprudence.
Society- or community- is not just a jumble of people thrown together by circumstance or
chance. It has a fundamental ‘pattern’: our concern or sympathy for each other. This is a basic
human good. Finnis cites Aquinas, who is himself building on Aristotle. The conviviality, or
sociability of human beings expresses itself in different ways: relationships between
individuals, friendship, sexual/ intimate relationships, or more general relationship with
others: neighbourlyness, or the ‘loaded’ term ‘fraternity’. This is drawn from the Latin word
for brother; in other words, it suggests a society modelled on the relationship between men,
rather than the relationship between women and men; or indeed, women men and those who
are neither or both. As part of our re-thinking of Finnis, we could suggest that societas relates
to descent relationships between human beings who are themselves different from each other,
and express themselves in plural ways.

So, it is useful to think about community and society: what kind of society do we want?
Presumably one that is tolerant, decent and humane – and one that does not exclude people
on the grounds of race, gender or sexual orientation. It is not clear that Finnis can help us
with this vision, despite stressing its general importance. His version of natural law comes
down to a defence of exclusive, traditional values. Against Finnis, it could be argued that a
decent, tolerant society requires plural moralities. This vision would allow us to distinguish
between valid, ‘deeply held’ religious opinions, and those that were merely ‘covers’ for
racism, sexism, homophobia or patriarchy. Finnis cannot help us work these matters out; and
Lee is too pragmatic a case to provide any real guidance.

This essay has argued that Natural law- classical or modern- cannot really help us with
understanding the legal reasoning in this case. But natural law can help us to frame the issues
that it raises. Finnis’ relevance is open to question. In terms of a general understanding of
Lee, Finnis’ jurisprudence- particularly his concept of societas- is helpful- but only if one
develops in a direction that moves away from the ‘eternal verities’ of Finnis’ thinking—
which only serve to present contingent social views as somehow sanctioned for all time.

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Lee v Ashers Baking Company and Liberal Jurisprudence

Liberal jurisprudence might help us to frame some of the concerns of the Lee case, but it
would be wrong to argue that the SC draw- either directly or indirectly- on any explicit theory
of liberalism in order to resolve the issues raised by Lee. The SC certainly takes part in a
balancing exercise, but their primary concern is with the case law, rather than any
engagement with matters of broad principle, that might open themselves to political or moral
debate. Ultimately, the case is a rather pragmatic solution – that leaves many issues
unanswered- and some difficult issues – which could be thought about through liberal
jurisprudence- unresolved. This essay will argue that it is possible to move beyond the
narrow ruling of the case, to examine certain themes in relation to the harm principle,
equality and rights that can be framed through liberal jurisprudence—even if this points to the
need for a political, constitutional debate that is ill suited for the courts, and long overdue in
British politics.
The starting point of our argument is to outline the main issues addressed by the case. There
are perhaps two key concerns: how to balance religious liberties or rights with those of
equality in NI and the importance of this case for HR law in the UK as a whole. As this is not
a public law essay, we will not be too concerned with the procedural reasons why the SC
allowed the appeal. The bakers refused Mr.Lee’s request to provide him with a cake with a
message in icing on it: ‘support gay marriage’. The SC determined that Archers were within
their rights to refuse to provide the cake.
The courts appear to balancing religions values with the prohibition on discrimination.
However, the facts of the case were such that it makes a poor illustration of any general
principle. Mr. Lee had not been directly discriminated against when the bakers refused to
provide him with the cake, and the iced message, that he had ordered. In summary, the issue
was that the bakers could not be compelled to put the message on the cake; it was not an issue
that a gay man had ordered the cake. This was supported with a human rights argument. The
SC found that Article 9 and Article 10 protected the Archers right not to ‘speak’ in a way that
conflicted with their religious opinions. On the facts, the court had to come to this conclusion
because of the findings of the trial judge. In other words, it is hard to see – except very
indirectly- how this case can be understood from anything other than a rather narrow legal
perspective.
How, though, might these issue be framed in terms of liberal legal theory? The issues in this
case are fairly remote from the Hart-Devlin debate, but we can draw certain themes forward.
The focus for argument is the harm principle. In order to develop this argument, we could
show how Devlin’s approach might be used to defend the case. Devlin stresses the harm
element of Mill’s famous principle, which is meant to determine when behaviour can be
sanctioned by law. Devlin stresses the harm that occasions from breaking the views of a
moral majority. The courts are thus justified in using the law to enforce the moral standards
of the majority. We would have to suppose, to make sense of this argument, that the Archers’
perspective is a majority one. We would also have to suppose that support for gay marriage
somehow undermines morality. There is no evidence to support either point. Any application
of Devlin’s argument thus breaks down pretty quickly. It is ill suited to the facts and issues
raised by the case. Indeed, Hart was thus right to criticise Devlin’s view. So it may be that a
criticism of the case could be built on Hart’s position. Hart shows that what is important to

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morality is a sense of what is shared between plural moral systems. From this perspective,
the court should perhaps have been more willing to challenge certain ‘deeply held’ religious
points of view, in order to build a coherent position where supportive, loving relationships
(between men and women; men and men; women and women; and those that refuse such
categories) are seen as central to a decent society. The facts of the case do not allow them to
do this: there had been no direct discrimination against Mr. Lee.
Whilst the Hart-Devlin debate is quite remote from this case, it does other issues that we can
address through themes in liberal jurisprudence. The SC refused to engage in any real moral
or political arguments—but this does not prevent us from approaching the case from a moral
or political perspective. It might be that a utilitarian approach would justify the ruling: on the
facts of the case, it would be for the greater good if the right not to print a message ‘trumped’
the prohibition on discrimination. However, this is open to two basic objections: firstly, it is
not clear which position is for the greater good; and secondly, arguments about the greater
good should be limited by the defence of values and rights that are not dependent on
majoritarian claims for their legitimacy. Thus, the right not to be discriminated against must
itself ‘trump’ the majoritarian belief that discrimination is for the greater good.
Dworkin- and perhaps even Hart- might make this kind of argument. Dworkin would also
perhaps add that what is at stake in this case is a matter of equality. Again, the facts make a
clear argument difficult; but equality requires equality of ‘stake’ in society and moral
equality: the risk of this ruling is that certain points of view are acceptable, even though they
are based on a moral code that is not accepted by all people- and- indeed founded on values
that are based on faith and revelation, rather than rational argument. Although Dworkin and
Rawls do not agree on some important themes in arguments about equality, they might agree
that equality is important for symbolic recognition- and one of the consequences of the ruling
in Lee is that discriminatory ideas may be accepted as valid religious expression. Whilst
some authority must be accorded to tradition, it is necessary to define the basic terms in
which modern, plural societies- which can no longer take for granted justifications of
positions by reference convention or tradition. In Lee, the court refuses to engage with such
problems. Rightly so, given the facts of the case- but- from the perspective of critical
questions that could be asked from the perspective of liberal jurisprudence, the case
effectively avoids difficult debates in affirming a technical and perhaps pragmatic solution to
a problem. A problem that perhaps cannot be properly addressed without much broader
political, moral and constitutional debate.
So, the reasoning in Lee is clearly not directly informed by any principles drawn from liberal
jurisprudence. This does not prevent us from framing the case in such terms. We have drawn
on the Hart/Devlin debate, arguments around utilitarianism and equality to open up possible
terms for discussion of the wider political and moral issues that the case raises. Given the
sorry state of British politics at the moment, and the strain to which constitutional
arrangements are being subjects, perhaps it is high time to think about the extent to which
liberal values around equality, decency and fairness structured the values that are meant to
animate the institutions of a democratic society.

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