'Gay cake' discrimination complaint ruled 'inadmissible' after Christian-run bakery refused order

In 2018, the UK Supreme Court ruled that Northern Ireland gay rights activist Gareth Lee was not discriminated against when the Christian owners of a Belfast bakery refused to make him a cake iced with the slogan "Support Gay Marriage". Credit: UTV

A Northern Irish gay rights activist who claimed he was discriminated against when a bakery refused to make him a cake iced with the slogan "Support Gay Marriage" has said he 'very much hoped for a different outcome' after the claim was ruled inadmissible in court. Gareth Lee claimed that he was discriminated against when the Christian owners of the Belfast bakery declined his order. On Thursday, his complaint was ruled inadmissible by the European Courts of Human Rights (ECRH) in the years-long court battle.. The ECHR said Mr Lee had failed to "exhaust domestic remedies" in his case.

In response Mr Lee said: “I 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.

"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.

"I am grateful to my legal team and to everyone who, over many years, has given me help and support. I believe we all want to live in an open, fair and tolerant society.

"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."

Mr Lee’s case was brought to the ECHR by Ciaran Moynagh of Phoenix Law: "We are disappointed with the Courts ruling this morning. Mr Lee brought the appropriate and only application available to him and dealt with all arguments that arose in the course of appeals. We are clear that Mr Lee’s convention rights were engaged and put forward during the litigation. 

"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. 

"Owners of limited companies have long taken advantage of being able to separate themselves financially from their business. We continue to believe they should also keep their political and religious views separate. When a general service is offered, it must be offered without favour or prejudice."

In 2018, the UK Supreme Court had ruled that the bakery had not discriminated against Mr Lee.

The complainant 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, 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."

Mr Lee 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.

The high-profile controversy first flared when Mr 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.

Mr 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.

Gareth Lee said at the time that the refusal to make the cake made him feel like a "second-class citizen".

The Christian Institute welcomed the ECHR ruling, saying it was the "right result".

Spokesman Simon Calvert said: "The UK Supreme Court engaged at length with the human rights arguments in this case and upheld the McArthurs' rights to freedom of expression and religion.

"It was disappointing to see another attempt to undermine those rights, so it is a relief that the attempt has failed.

"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.

"The ruling in October 2018 by five of the country's most distinguished and experienced judges was welcomed by lawyers, commentators and free speech experts from across the spectrum.

"They all knew of the implications for freedom of speech and religion, had the decision gone against Ashers.

"This is good news for free speech, good news for Christians, and good news for the McArthurs."

Rainbow Project director John O’Doherty said: “When a commercial business is providing services to the public, they cannot discriminate against their customers or clients on any grounds protected by equality law.

"The subsequent decision of the UK Supreme court created legal uncertainty, not just in Northern Ireland but, across the UK. Unfortunately, with today’s decision, that uncertainty will remain.

“The Rainbow Project affirms our fundamental belief in freedom of religion for all people, however this freedom cannot be extrapolated into privately owned business and used as a justification for discrimination.

"Fundamental human rights exist for people, not for for-profit businesses. We must ensure that there cannot be a permissive use of legislation by privately owned businesses, which allows for discrimination on the basis of any protected characteristics including race, sexual orientation, faith or political opinion.

Mr O'Doherty said the result left lingering questions around what protections exist for LGBTQIA+ people when accessing goods, facilities and services.

Belfast-based human rights group the Committee on the Administration of Justice (CAJ) described the ECHR ruling as a “missed opportunity”.Director Daniel Holder said: “We believe this leaves an ambiguity whereby individuals and organisations across Europe actively campaigning on gay rights would be particularly vulnerable to a commercial business refusing to provide services like printing posters, leaflets, setting up websites, etc, through claiming an exemption to non-discrimination laws on the basis of ‘it’s not you, it’s your message’.”

Welcoming the decision of the European Court of Human Rights, Peter Lynas, former barrister and UK director of the Evangelical Alliance commented: “After almost eight years, the saga of the not so gay cake case may finally now be over. Everyone’s human rights have been affirmed and everyone is better off after today's ruling which protects us all from compelled speech.

“Mr Lee’s application has been rejected and the ruling of the UK Supreme Court stands. This case was about freedom of conscience, speech and belief, and whether someone could be forced to create a message they profoundly disagreed with. Today’s ruling protects everyone from compelled speech.

“The Supreme Court found no discrimination on grounds of sexual orientation, religious belief or political opinion. The issue was always the message rather than the messenger. In ruling the case inadmissible, the ECHR has effectively backed the Supreme Court ruling.”