The long-running legal battle over a Christian business refusing to bake a cake advocating gay marriage appears to have finally reached an end today after the European Court of Human Rights ruled it ‘inadmissible’ – with supporters of the bakers hailing the decision a ‘victory for free speech’.
The high-profile controversy began when Gareth Lee, a member of the LGBT advocacy group QueerSpace, ordered a £36.50 cake from the Ashers bakery in Belfast, run by Daniel and Amy McArthur, in May 2014.
The couple refused to fulfil the order because they disagreed with the slogan – ‘Support Gay Marriage’ – which was supposed to be drawn in icing on the dessert item, which also featured Sesame Street puppets Bert and Ernie.
This sparked a seven-year-old legal battle which cost The Equality Commission of Northern Ireland £251,000 of public money, while the Christian Institute covered £250,000 of legal costs for the Ashers bakery, which takes its name from an Old Testament figure.
The case reached the UK Supreme Court in 2018, which ruled in favour of the Christian bakers.
Mr Lee then referred the case to the ECHR, claiming appropriate weight was not given to him under the European Convention of Human Rights.
But in a written ruling today, the European court in Strasbourg threw out the complaint, ruling that by not raising the Convention on Human Rights in British courts, Mr Lee deprived them of the opportunity to address any human rights issues.
The Christian Institute welcomed the ECHR ruling today, saying it was ‘good news for free speech, good news for Christians’.
‘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,’ spokesman Simon Calvert said.
But speaking after the ruling, Mr Lee said he had ‘hoped for a different outcome’ in his challenge to the ECHR, adding that he was ‘most frustrated that the core issues did not get fairly analysed and adjudicated upon because of a technicality’.
Mr Lee’s lawyer, Ciaran Moynagh of Phoenix Law, said they would consider whether to bring a fresh court challenge under domestic law.
Belfast-based human rights group the Committee on the Administration of Justice described the ECHR not being able to deal with the issue ‘on a technicality’ represents a ‘missed opportunity’ to clarify the law, and there is now an ‘ambiguity’ on whether campaigners can be refused services like printing leaflets or setting up websites on the basis of ‘it’s not you, it’s your message’.
And John O’Doherty, director of LGBTQ support group the Rainbow Project, said the ECHR ruling may bring the case to a close, but ‘there remains a number of questions around what protections exist for LGBTQIA+ people when accessing goods, facilities and services following the Supreme Court decision in October 2018.’
Gay rights activist Mr Lee said he had ‘hoped for a different outcome’ in his challenge to the ECHR over the ‘gay cake’ 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.
‘I am 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.
‘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 ECHR ruling said: ‘Convention arguments must be raised explicitly or in substance before the domestic authorities. 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.’
The cake, which featured Sesame Street puppets Bert and Ernie, was intended for a private function marking the International Day Against Homophobia.
The order was accepted and he paid in full, but two days later the Christian owners of the company called to say it could not proceed due to the message requested.
Mr Lee, a member of the LGBT advocacy group QueerSpace, launched the legal case, supported by Northern Ireland’s Equality Commission, alleging discrimination on the grounds of his sexuality.
The case was fought in several courts, eventually in 2018 reaching the UK Supreme Court, which ruled that Mr Lee was not discriminated against when Ashers bakery refused to make him a cake with the slogan supporting gay marriage.
Mr Lee then referred the case to the ECHR, claiming that the Supreme Court failed to give appropriate weight to him under the European Convention of Human Rights.
But the ECHR in Strasbourg today ruled that the case was ‘inadmissible’, finding that Mr Lee had failed to ‘exhaust domestic remedies’ in the case, and he had not ‘invoked his Convention rights at any point in the domestic proceedings’.
Mr Lee had previously won hearings at the county court and the Northern Ireland Court of Appeal in 2015 and 2016, but the owners of Ashers – backed by the Christian Institute – challenged those rulings at the Supreme Court.
In 2018 five justices unanimously ruled that they had not discriminated against the customer. The Supreme Court’s then president, Lady Hale, said that the bakers did not refuse to fulfil the order because of the customer’s sexual orientation, but because they objected to ‘the message on the cake’.
Mr Lee then referred the case to the ECHR, claiming that the Supreme Court failed to give appropriate weight to him under the European Convention of Human Rights.
He claims that his rights were interfered with by the decision of the UK’s highest court to dismiss his claim for breach of statutory duty to provide services, and the interference was not proportionate.
In a previous hearing, the UK Supreme 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 said: ‘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.’
Source: Dailymail