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ECtHR finds gay-marriage cake case inadmissible

In its decision in the case of Lee v the United Kingdom, the European Court of Human Rights has, by a majority, declared the application inadmissible. The decision is final.

The case concerned the refusal by a Christian-run bakery to make a cake with the words ‘Support Gay Marriage’, which the applicant had ordered, and the proceedings that had followed.

British national

QueerSpace, an organisation for lesbians, gays, bisexuals and transgender people.

Although same-sex marriage had been enacted in the rest of the UK in 2014, it was only made legal in the North in 2020. 

In 2014, Lee ordered a cake for a gay-activist event, set to take place not long after the Stormont Assembly had narrowly rejected legalising same-sex marriage for the third time. 

He ordered it from Asher’s bakery. The cake was to have an image of Sesame Street’s characters Bert and Ernie, the logo of QueerSpace, and the slogan ‘Support Gay Marriage’. Lee paid in advance. The following day the bakery called him to say it would not fulfil his order because it was a Christian business.

The bakery apologised and refunded his money.

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. 

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

The County Court found that the failure to fulfil the order had constituted direct discrimination on the grounds of the applicant’s sexual orientation and his religious beliefs or political opinions, in breach of the Fair Employment and Treatment (Northern Ireland) Order 1998 and the Equality Act (Sexual Orientation) Regulations (Northern Ireland) 2006. 

The County Court accepted that the bakery owners’ Article 9 rights were engaged, but held that they were not entitled to manifest their religious beliefs in the commercial sphere if this would be contrary to the rights of others.

Endorse

It considered that Article 10 was not engaged because the bakery had not been required to support, promote or endorse Lee’s view.

The Court of Appeal upheld that decision, noting the possibility for arbitrary abuse if businesses were free to choose what services to provide to the gay community on the basis of religious beliefs. 

The Supreme Court overturned the decision. It held that there had been no less favourable treatment on the grounds of religious belief, since the bakery owners had not refused to serve the applicant because he was gay, but rather because they objected to being required to promote a message with which they profoundly disagreed.

Even if there had been discrimination on grounds of political opinion, it held that the 1998 order should not be read in a way that required the bakery owners to express a message with which they profoundly disagreed.

Even if there had been discrimination on grounds of political opinion, it held that the 1998 Order should not be read in a way which required the bakery owners to express a message with which they profoundly disagreed.

Lodged 

The application was lodged with the European Court of Human Rights (ECtHR) on 3 April 2019.

Relying 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, the applicant complained that his rights had been interfered with by a public authority – the Supreme Court – by its decision to dismiss his claim for breach of statutory duty; and that the interference had not been proportionate. 

The court reiterated that, in order for a complaint to be admissible, the 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

Failed to exhaust domestic remedies

The decision of the ECtHR is final and cannot be appealed.

It was given by a chamber of seven judges:

• Yonko Grozev (Bulgaria),
• President, Tim Eicke (UK),
• Faris Vehabović (Bosnia and Herzegovina),
• Iulia Antoanella Motoc (Romania),
• Armen Harutyunyan (Armenia),
• Pere Pastor Vilanova (Andorra), and
• Jolien Schukking (The Netherlands).