A legal challenge by a Northern Ireland gay rights activist who claimed he was discriminated against when a bakery refused to make a cake with a slogan supporting same-sex marriage has been dismissed by the European Court of Human Rights (ECHR).
The court declared the action inadmissible and said the applicant, Gareth Lee, had "failed to exhaust domestic remedies" available through the UK courts.
In the ruling, published yesterday, a majority of seven judges said Mr Lee had not invoked his rights under the ECHR “expressly at any point in the domestic proceedings”.
By relying solely on domestic law, they said, “the applicant had deprived the domestic courts of the opportunity to address any Convention issues raised, instead asking the Court to usurp the role of the domestic courts”.
In 2014, Mr Lee, a member of the LGBT group QueerSpace, ordered a cake from Belfast-based bakery Ashers – a Christian-run firm. It was to feature the Sesame Street puppets Bert and Ernie and the slogan "Support Gay Marriage".
He took legal action – which became known as the ‘gay cake’ case – alleging discrimination on the grounds of his sexuality after Ashers cancelled the order due to the message on the cake, which conflicted with their Christian beliefs.
Mr Lee, who was supported by the Northern Ireland Equality Commission, won his case and a subsequent appeal in the Northern Ireland courts, but the bakery owners, the McArthurs – who were backed by the Christian Institute – took the case to the Supreme Court, which found in favour of the bakery in 2018.
Objection to message
It unanimously ruled that Mr Lee had not been discriminated against because of his sexual orientation and/or political beliefs, and “the objection was to the message and not to any particular person or persons.”
Mr Lee subsequently took a case against the UK government at the ECHR. Neither the McArthurs nor The Christian Institute were parties to the case, but both made written interventions through their lawyers.
In a statement after the ruling, Mr Lee said he had “very much hoped for a different outcome”.
“Everyone has freedom of expression and it must equally apply to lesbian, gay, bisexual and trans people,” he said. “The message on the cake was mine and I paid a company that printed messages on cakes to print my message.
“None of us should be expected to have to figure out the beliefs of a company’s owners before going into their shop or paying for their services.”
He said he was “most frustrated that the core issues did not get fairly analysed and adjudicated upon because of a technicality” and that the case had “put a spotlight on the challenges faced” by LGBT+ peopl in Northern Ireland.
Mr Lee’s solicitor, Ciaran Moynagh of Phoenix Law, said they were “disappointed” with the ruling and that his client had “brought the appropriate and only application available to him and dealt with all arguments that arose in the course of appeals”.
“We are clear that Mr Lee’s Convention rights were engaged and put forward during the litigation,” he said.
Substantive issues
Mr Moynagh said he and his client would now consider whether a fresh domestic case would be taken given “the substantive issues raised by my client in his application to the ECHR remain unaddressed”.
Simon Calvert, spokesman for the institute, said the ECHR’s decision was “the right result” given the UK Supreme Court had “upheld the McArthurs’ rights to freedom of expression and religion”.
“I’m surprised anyone would want to overturn a ruling that protects gay business owners from being forced to promote views they don’t share, just as much as it protects Christian business owners.”
The deputy director of the Committee on the Administration of Justice (CAJ), which was a third-party intervener in the case, said it was a “missed opportunity” for the ECHR to “clarify its case law on sexual orientation and discrimination in the private sector, particularly when it is said to relate to the message rather than the customer”.
DUP leader Jeffrey Donaldson welcomed the ruling, describing it as “a very clear decision and a welcome victory for freedom of expression and belief”.
He said it had been a “very long process” and his thoughts were with the McArthur family, whose “dignity and courage throughout this process has been an example to us all”.
