Gay cake row: Activist loses discrimination case after Christian bakery refused to make ‘Support Gay Marriage’ cake

A gay rights activist has had his discrimination case thrown out after a Christian bakery refused to make him a cake with the slogan "Support Gay Marriage" on it. 

Gareth Lee claimed that he was discriminated against when the Christian owners of a Belfast bakery told him they would not bake the cake.

The case reached the European Courts of Human Rights (ECHR), but it was ruled inadmissible as the panel said Mr Lee failed to "exhaust domestic remedies" in the long-running so-called "gay cake" case.

In 2018, the UK Supreme Court ruled that Mr Lee was not discriminated against when Ashers bakery refused to make him a cake with the slogan supporting gay marriage.

Mr 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.

But in a written ruling on Thursday, the ECHR said: "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 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."

The cake was eventually made by another baker

Credit: Pixel8000

The high-profile controversy first flared when Mr Lee, a member of the LGBT advocacy group QueerSpace, ordered a £36.50 cake from Ashers in May 2014 featuring Sesame Street puppets Bert and Ernie for a private function marking the International Day Against Homophobia.

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 they had not discriminated against the customer.

Daniel McArthur and his wife Amy the owners of Ashers bakery

Credit: Brian Lawless/PA

‘This is good news for free speech, good news for Christians’

The Christian Institute welcomed a ruling by the European Court of Human Rights that a complaint in the "gay cake" case was inadmissible.

Spokesman Simon Calvert said: "This is the right result.

"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."

Human rights group laments ‘missed opportunity’

Belfast-based human rights group the Committee on the Administration of Justice (CAJ) described the ECHR ruling in the "gay cake" case as a "missed opportunity".

Daniel Holder, deputy director of the CAJ, said: "The European Court of Human Rights having not been able to deal with this issue on a technicality is a missed opportunity for it to clarify its case law on sexual orientation and discrimination in the private sector, particularly when it is said to relate to the message rather than the customer.

"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’."

LGBTQ support group the Rainbow Project said the ECHR ruling was disappointing.

Director John O’Doherty said: "This case was taken against the UK Government for its failure to protect Mr Lee from discrimination.

"The County Court and the NI Court of Appeal confirmed the scope of anti-discrimination law in Northern Ireland.

"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.

"While today’s decision brings this case to a close, there remains a number of questions around what protections exist for LGBTQIA+ people when accessing goods, facilities and services following the Supreme Court decision in October 2018."

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