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 Court of Human Rights.
The ECHR said Lee had failed to “exhaust domestic remedies” in his case.
In 2018, the UK Supreme Court ruled that Lee was not discriminated against when Ashers bakery refused to make him a cake with the slogan supporting gay marriage.
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.
Lee claimed 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.
But, in a 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.”
Responding to the ruling, Lee said he had “very much hoped” for a different outcome.
“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.
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.
He added that the case has “put a spotlight on the challenges faced by LGBT+ in Northern Ireland” and that he will continue to support “all law that protects and gives rights to all people equally”.
Lee’s lawyer, Ciaran Moynagh, added: “Given the position the European Court has taken this morning, we will now consider whether a fresh domestic case is progressed.”
“The substantive issues raised by my client in his application to the ECHR remain unaddressed and this is a missed opportunity. Today’s decision means that the law here in NI remains in a state of uncertainty as to how persons rights can be protected,” he said.
The high-profile controversy first flared when Lee, a member of the LGBT advocacy group QueerSpace, ordered a £36.50 cake in May 2014 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, but, two days later, the Christian owners of the company called to say it could not proceed due to the message requested.
Lee then launched the legal case, supported by Northern Ireland’s Equality Commission, alleging discrimination on the grounds of his sexuality, and won hearings at the county court and the Northern Ireland Court of Appeal in 2015 and 2016.
But the owners of Ashers, Daniel and Amy McArthur – backed by the Christian Institute, challenged those rulings at the Supreme Court, 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 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 Lee or of anyone else with whom he was associated.”
Lee said at the time that the refusal to make the cake made him feel like a “second-class citizen”.
The McArthurs said they did not turn down this order because of the person who made it, but because of the message requested on the cake.
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