THE European Court of Human Rights (ECHR) last week declined to hear a claim against the UK by Gareth Lee that his rights under the Convention for the Protection of Human Rights and Fundamental Freedoms had been violated by the Christian owners of a bakery in Belfast who refused to fulfil his order for a cake with the words “Support Gay Marriage” iced on it.
Mr Lee is a British national, born in 1969, who lives in Belfast. He is a gay man and is associated with QueerSpace, a volunteer-led organisation for the lesbian, gay, bisexual, and transgender community in Northern Ireland.
In 2014, legislation came into force in England and Wales and in Scotland which enabled same-sex couples there to acquire married status in civil law on the same basis as heterosexual couples. That led to political debate in Northern Ireland about whether similar legislation should be introduced there. The Northern Ireland Assembly voted on the matter five times between 2012 and 2015. Same-sex marriage did not become legal in Northern Ireland until 13 January 2020.
On 17 May 2014, shortly after the Northern Ireland Assembly had, by a narrow margin, rejected the third motion to introduce same-sex marriage, a private event was planned to mark the end of the Northern Ireland Anti-Homophobia and Transphobia week, and the gathering momentum towards legislation for same-sex marriage.
Mr Lee planned to attend the event and to take a cake. On 8 or 9 May 2014, he placed an order with Ashers Baking Co Ltd (“Ashers”), which Mr Lee had used before, and which had publicised a service whereby a cake could be iced with a graphic of the customer’s own design. Mr Lee ordered a cake iced with characters from a popular children’s television show, and also the logo of Queerspace and the headline caption “Support Gay Marriage”. Ashers received the order and Mr Lee’s deposit without comment.
On 12 May, Ashers telephoned Mr Lee to say that his order could not be fulfilled because they were a Christian business and in hindsight should not have accepted the order. They apologised and returned the deposit. Mr Lee was able to find another bakery to provide the cake with the required design.
With the support of the Equality Commission for Northern Ireland, Mr Lee brought an action against Ashers and its owners, Daniel and Amy McArthur, claiming that he had been directly or indirectly discriminated against on the grounds of sexual orientation, political opinion, or religious belief.
Mr Lee argued that the McArthurs took exception to his sexual orientation, which they considered sinful. He said that in placing the order he had not asked them to support or promote his cause, but, rather, to bake a cake.
The McArthurs argued that the order was refused, not because of Mr Lee’s sexual orientation, of which they had no knowledge, but, rather, because they believed that providing the cake would have promoted the political campaign for legalisation of same-sex marriage in Northern Ireland, which they regarded as sinful and against their Christian belief. They said that they would have supplied the cake to Mr Lee without the slogan, and would have refused to supply a cake to a heterosexual or bisexual customer requesting the same or a similar slogan.
The County Court and the Court of Appeal of Northern Ireland ruled in favour of Mr Lee. The McArthurs appealed to the Supreme Court of the UK.
The five justices of the Supreme Court who heard the appeal unanimously decided on 10 October 2018 that the McArthurs had not discriminated against Mr Lee (News, 12 October 2018). The court said that “the bakery was required, on pain of liability in damages, to supply a product which actively promoted . . . a cause in which many believe, but . . . which the owners most definitely did not.” The McArthurs “were being required to express a message with which they deeply disagreed”. The Supreme Court noted that that the McArthurs would have refused to supply that particular cake to anyone, whatever their personal characteristics.
Mr Lee complained to the ECHR that his rights were interfered with by a public authority, the Supreme Court. He said that the Supreme Court’s judgment of allowing the McArthurs’ appeal violated his rights under the Human Rights Convention, namely Article 8 (the right to respect for private and family life); Article 9 (the right to freedom of thought, conscience and religion); Article 10 (the right to freedom of expression); and Article 14 (the right to enjoy Convention rights without discrimination on grounds of sex, race, colour, language, religion, political, or other opinion, national or social origin, etc.).
There were several third-party interveners to Mr Lee’s claim in the ECHR, including the McArthurs, the Government of Poland, and the Christian Institute.
The ECHR is a court based in Strasbourg, and is not connected with the European Union. The purpose of the ECHR is to enforce compliance with the Human Rights Convention by countries that are members of the Council of Europe. Therefore, claims alleging violations of the Convention must be brought against the country concerned. Consequently, Mr Lee’s claim was against the UK.
The ECHR ruled that the claim was “inadmissible” because Mr Lee had not exhausted all his domestic remedies. He “did not invoke his Convention rights expressly at any point in the domestic proceedings”, the ECHR said. Instead, he formulated his claim against the McArthurs by reference to domestic legislation: the Equality Act (Sexual Orientation) Regulations (Northern Ireland) 2006, and the Fair Employment and Treatment (Northern Ireland) Order 1998. Consequently, the domestic courts were asked only to balance Mr Lee’s rights under that domestic legislation against the McArthurs’ rights under Articles 9 and 10 of the Convention.
If Mr Lee had formulated his claim against the McArthurs by relying on his Convention rights, as well as his rights under the local legislation (which may have been similar or identical), the domestic court would then have had to balance those rights against the McArthurs’ rights
Since the Human Rights Act 1998 gave litigants the right to invoke their Convention rights directly before a domestic court in the UK, Mr Lee had failed to “exhaust” his remedies in the domestic court. The ECHR therefore declared Mr Lee’s claim “inadmissible”.