A GAY rights activist’s complaint that he was discriminated against when Christian bakery owners refused to make him a slogan cake has been dismissed by a European Court.
Gareth Lee 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 - “Support gay marriage”.
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.
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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.
And now, the case has made it to the European Court of Human Rights (ECHR), where the complaint has been ruled as inadmissible.
The ECHR said Lee had failed to “exhaust domestic remedies” in his case.
Lee said he had hoped for a different outcome, and his legal team signalled they will consider whether to launch a fresh challenge in the domestic courts.
But a Christian organisation that supported the bakery said the ECHR ruling was “good news for free speech”.
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.
Belfast bakery owners Daniel and Amy McArthur
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.
He 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.
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.
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“Because he had failed to exhaust domestic remedies, the application was inadmissible.”
Speaking after the ruling, Lee 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.
“I am most frustrated that the core issues did not get fairly analysed and adjudicated upon because of a technicality.
The ECHR in Strasbourg, France, ruled the complain was inadmissable
“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.
“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.”
Belfast-based human rights group the Committee on the Administration of Justice (CAJ) described the ECHR ruling as a “missed opportunity” and LGBTQ support group the Rainbow Project said the decision was disappointing.
The Christian Institute welcomed the ruling and said it upheld the McArthur's "freedom of expression and religion".
Meanwhile, Northern Ireland’s First Minister Paul Givan said the case “should never have been brought to court in the first place”.
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During the 2018 hearing, the Supreme 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 Mr 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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