The defendants argued that they did not discriminate against Gareth Lee because of his sexual orientation or political beliefs by pointing out that
- regardless of his sexual orientation or political beliefs they would have served Gareth Lee if he had ordered the cake without the message
- they would have refused to fulfill the order for a "Support Gay Marriage" cake, even if the order had been made by "a heterosexual customer".
The Judge did not consdier these fair comparisons "for the reason that it oversimplifies the enquiry" in that it does not take sufficiently into account that discrimination "may be subtle, insidiuous or hidden," even to the discriminator.
Asking for the grounds, the why of discrimination is ambiguous. The question may be about "what caused the treatment in question" or about what was "its motive and purpose." Citing an earlier case, the Judge observes that "the former is important, the latter is not."
In other words, the question is not whether the bakers were and are happy to serve people of a particular "sexual orientation" or people holding particular political beliefs - we may grant that they are entirely happy to do so - but whether people like Gareth Lee are given unfavourable treatment.
The comparison must therefore be between a heterosexual customer ordering a "Support Marriage" cake and a homosexual customer ordering a "Support Gay Marriage" cake. The former gets served, the latter does not. This constitutes discrimination on the grounds of sexual orientation.
The Judge then cites from Bull and another v Hall and another [2013] UKSC 73
PS: In the second part the QC for the Plaintiff claims that it is possible to discriminate against someone on the grounds of their religious belief or political opinion even without knowing what these are. The Judge rejected the Defendant's claim that they did not know the customer's political opinion but agreed that even if this had been the case, the refusal to bake a cake with the message "Support Gay Marriage" would still have been a case of discrimination on the grounds of politic belief.
The Judge then cites from Bull and another v Hall and another [2013] UKSC 73
"[37] 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. We would not normally allow people to behave in a way which the law prohibits because they disagree with the law. But to allow discrimination against persons of homosexual orientation (or indeed heterosexual orientation) because of a belief, however sincerely held, and however based on the biblical text, would be to do just that."The relevance of this is not immediately clear to me. Does this imply and allege that the people at Ashers Bakery do in fact "not believe that persons of homosexual orientation should be treated equally with persons of heterosexual orientation"? Up to this point, I thought the argument was that the claim that the bakers do not hold such a belief was granted but declared irrelevant because in spite of their best intentions "gay customers" (who can be assumed to be in favour of "gay marriage" and willing to promote this with cakes?) are in fact disadvantaged over "heterosexual customers" (who may be presumed to order cakes which say "Support Marriage"?) and hence indirectly discriminated against.
PS: In the second part the QC for the Plaintiff claims that it is possible to discriminate against someone on the grounds of their religious belief or political opinion even without knowing what these are. The Judge rejected the Defendant's claim that they did not know the customer's political opinion but agreed that even if this had been the case, the refusal to bake a cake with the message "Support Gay Marriage" would still have been a case of discrimination on the grounds of politic belief.
