A complaint by Northern Ireland gay rights activist Gareth Lee that he was discriminated against when the Christian owners of a Belfast bakery refused to make him a cake iced with the slogan “Support Gay Marriage” has been ruled inadmissible by the European Courts of Human Rights.
The European Court of Human Rights said it has, by a majority, declared the application “inadmissible” on a point of law.
The Christian owners of a bakery in Belfast told Mr Lee they would not make the cake featuring Sesame Street puppets and the logo of campaign group QueerSpace due to their religious beliefs.
The UK Supreme Court ruled in 2018 the Northern Ireland activist was not discriminated against by the Belfast-based owners of Ashers bakery, Daniel and Amy McArthur.
Mr Lee then referred the case to the European Convention on Human Rights (ECHR), claiming that the Supreme Court failed to give appropriate weight to him.
ECHR court ruling
But in Thursday’s ruling, the court said: “Convention arguments must be raised explicitly or in substance before the domestic authorities.”
It added: “The applicant had not invoked his Convention rights at any point in the domestic proceedings.
“By relying solely on domestic law, 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.
“Because he had failed to exhaust domestic remedies, the application was inadmissible.”
High profile controversy
The high-profile controversy dates back to May 2014 when Mr Lee, a member of the LGBT advocacy group QueerSpace, ordered a £36.50 cake featuring Sesame Street puppets Bert and Ernie for a private function marking International Day Against Homophobia from Ashers bakery in Belfast.
His order was accepted and he paid in full. However, the Christian owners of the company called Mr Lee to say it could not proceed due to the message requested.
Supported by Northern Ireland’s Equality Commission, Mr Lee launched a legal case alleging discrimination on the grounds of his sexuality.
He won hearings at the county court and the Northern Ireland Court of Appeal in 2015 and 2016.
But the McArthurs challenged those rulings at the Supreme Court, backed by the Christian Institute, and in 2018 five justices unanimously ruled that they had not discriminated against the customer.
The court’s then-president, Lady Hale, said the McArthur family hold the religious belief that “the only form of marriage consistent with the Bible and acceptable to God is between a man and a woman”.
She added: “As to Mr Lee’s claim based on sexual discrimination, the bakers did not refuse to fulfil his order because of his sexual orientation.
“They would have refused to make such a cake for any customer, irrespective of their sexual orientation.
“Their objection was to the message on the cake, not to the personal characteristics of Mr Lee or of anyone else with whom he was associated.”
At the time, Mr Lee said the refusal to make the cake made him feel like a “second-class citizen”.
Reaction to ruling
Following the ruling, Mr Lee said he had “hoped for a different outcome” in his challenge to the ECHR over his case.
He said: “Everyone has freedom of expression and it must equally apply to lesbian, gay, bisexual and trans people.
“The message on the cake was mine and I paid a company that printed messages on cakes to print my message.
“My message supported the campaign for same-sex marriage that was ultimately successful and I am delighted with that.”
He said he was “most frustrated” that the core issues did not get fairly analysed and adjudicated upon “because of a technicality”.
“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 added.
“This case has put a spotlight on the challenges faced by LGBT+ in Northern Ireland. I will continue to support all law that protects and gives rights to all people equally.”
The Christian Institute welcomed Thursday’s ruling by the European Court of Human Rights that a complaint in the “gay cake” case was inadmissible.
“This is the right result,” spokesman Simon Calvert said.
“The UK Supreme Court engaged at length with the human rights arguments in this case and upheld the McArthurs’ rights to freedom of expression and religion.
“It was disappointing to see another attempt to undermine those rights, so it is a relief that the attempt has failed.”
He said he was “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”.
Mr Calvert continued: “The ruling in October 2018 by five of the country’s most distinguished and experienced judges was welcomed by lawyers, commentators and free speech experts from across the spectrum.
“They all knew of the implications for freedom of speech and religion, had the decision gone against Ashers.
“This is good news for free speech, good news for Christians, and good news for the McArthurs.”
Belfast-based human rights group the Committee on the Administration of Justice (CAJ) described Thursday’s ECHR ruling as a “missed opportunity”.
Daniel Holder, deputy director of the CAJ, said: “The European Court of Human Rights having not been able to deal with this issue on a technicality is a missed opportunity for it 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.”
He added: “We believe this leaves an ambiguity whereby individuals and organisations across Europe actively campaigning on gay rights would be particularly vulnerable to a commercial business refusing to provide services like printing posters, leaflets, setting up websites, etc, through claiming an exemption to non-discrimination laws on the basis of ‘it’s not you, it’s your message’.”