European Court of Human Rights Rules on 'Gay Cake' Dispute

Seven years on from the initial complaint, the European Court of Human Rights has finally settled the matter as to whether or not Asher's Baking Company, a devoutly Christian firm in Belfast, discriminated against the complainant Gareth Lee - a gay rights activist.

The issue began back in 2014 when Mr Gareth Lee, an advocate for gay rights, requested that Asher's Baking Company make him a cake with the slogan "support gay marriage" on it, alongside a depiction of Bert and Ernie from Sesame Street. The bakers, a family-owned, Christian company whose name is derived from the Asher tribe mentioned in the Bible and who, it is said, could make bread fit for a king, refued on religious grounds to make said cake. 

Backed by the Northern Ireland Equality Commission, Mr. Lee brought an action against the bakers for allegedly discriminating against him, which he won. Mr Lee was also successful at the NI Court of Appeal in 2015 and 2016. However, the owner's of Asher's bakery, backed by the Christian Institute, appealed the case to the UK Supreme Court. In 2018 Lady Hale, for the Court in unison, overturned the decision of the lower courts on the basis that the bakers had not discriminated against Mr Lee personally on grounds of sexual orientation, but rather that they had simply objected to the message which was to be displayed on the cake as it was repugnant to their religious beliefs. Lady Hale, who was then President of the Supreme Court, commented that "nobody should be forced to have or express a political opinion in which he does not believe" and that the owners of the bakery "would have refused to make such a cake for any customer, irrespective of their sexual orientation." 

The case was then advanced to the ECHR, again with the backing of the Northern Ireland Equality Commission, on the grounds that the Supreme Court had not granted enough weight to Mr Lee during the proceedings. However, the ECHR ruled on Thursday last that as Mr Lee had not raised his rights under the European Convention on Human Rights before the domestic UK courts, he was prevented by law from doing so before the European Courts. "Convention arguments must be raised explicitly or in substance before the domestic authorities," the Court said, "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 Christian Institute welcomed Thursday's ruling by the European Court of Human Rights that a complaint in the "gay cake" case was inadmissible. "This is 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." He said he was "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".

Following the ruling, Mr Lee said he had "hoped for a different outcome" in his challenge to the ECHR over his case. He said: "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 he was "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. "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."



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