European Court of Human Rights dismisses 'gay cake' case

The European Court of Human Rights (ECtHR) has dismissed an appeal over a bakery’s refusal to bake a cake that featured a slogan in support of gay marriage, on the grounds the case was inadmissible as the claimant failed to exhaust domestic remedies.

In May 2014, gay activist Gareth Lee placed an order with Ashers Bakery in Belfast for a cake to feature the image of Sesame Street characters Bert and Ernie, the QueerSpace logo and the slogan “Support Gay Marriage”.

Two days later, the bakery cancelled the order on the basis the cake’s message contravened the bakery owners’ Christian beliefs.

Lee contacted the Equality Commission for Northern Ireland, which sought £500 compensation from Ashers on his behalf in June 2014.

In March 2015, the case went to the County Court in Belfast. Lee brought an action for breach of statutory duty in and about the provision of goods, facilities and services against the bakery and its owners, and argued that by failing to fulfil the order, the defendants had discriminated against him on the grounds of sexual orientation and his religious beliefs or political opinions.

The bakery and its owners invoked their rights under Articles 9 (freedom of thought conscience and religion) and 10 (freedom of expression) of the European Convention of Human Rights (the Convention).

In the first instance, the court ruled in Lee’s favour and said the bakery had directly discriminated against the claimant in breach of the Fair Employment and Treatment (Northern Ireland) Order 1998 and the Equality Act (Sexual Orientation) Regulations (Northern Ireland) 2006.

The court accepted the bakery owners’ Article 9 rights were engaged, but ruled they were not entitled to manifest their religious beliefs in the commercial sphere if this would be contrary to the rights of others. It considered that their Article 10 rights were not engaged as the bakery had not been required to support, promote or endorse Lee’s view.

The Court of Appeal upheld the lower court’s decision and said there was scope for arbitrary abuse if businesses could choose what services to provide to the gay community on the basis of religious belief.

However, in 2018, the Ashers appealed to the Supreme Court and the decision was overturned. The case was notable for being the first Supreme Court sitting in Belfast, as well as for being the first case in Northern Ireland to be live streamed online.

The court held there had been no less favourable treatment on the grounds of religious belief because the Ashers had not refused to serve the applicant because he was gay, but because they objected to being required to promote a message they disagreed with. Lady Hale said: “Their objection was to the message on the cake, not the personal characteristics of Mr Lee”.

In 2019, Lee appealed to the ECtHR. He sought to rely on Article 8 (right to respect for private life), Article 9 (freedom of thought conscience and religion) and Article 10 (freedom of expression), both alone and in conjunction with Article 14 (prohibition of discrimination) of the Convention. Lee complained his rights had been interfered with by a public authority (the Supreme Court) by its decision to dismiss his claim and that the interference had not been proportionate.

However, the ECtHR rejected the application as inadmissible as “Convention arguments must be raised explicitly or in substance before domestic authorities” and Lee had not sought to invoke his Convention rights “at any point in the domestic proceedings” which deprived the domestic courts of the opportunity to address any Convention issues.