"Gay cake" case rejected by Strasbourg court
The "Gay Cake" case, brought to challenge the refusal by a Christian-run bakery in Northern Ireland to make a cake with the words “Support Gay Marriage”, has been rejected as inadmissible by the European Court of Human Rights in Strasbourg – because the applicant failed to rely on his Convention rights in the proceedings he brought in the UK courts.
By a majority (unspecified), a seven judge bench ruled that by relying solely on domestic law, Gareth Lee had deprived the domestic courts of the opportunity to address any Convention issues raised, and instead was asking the court to usurp the role of the domestic courts when he had failed to exhaust domestic remedies. The decision is final.
Mr Lee had ordered a cake for a gay activist event set to take place not long after the Northern Irish Assembly had narrowly rejected legalising same-sex marriage. The cake was to include the slogan “Support Gay Marriage”. The following day the bakers, Ashers Bakery, called him to say it would not fulfil his order because it was a “Christian business”, apologised and refunded his money.
Mr Lee brought an action for breach of statutory duty – under the Fair Employment and Treatment (Northern Ireland) Order 1998 and the Equality Act (Sexual Orientation) Regulations (Northern Ireland) 2006 – in relation to the provision of goods, facilities and services. The bakery and its owners invoked their Convention rights under articles 9 (freedom of thought, conscience and religion) and 10 (freedom of expression). The county court and Court of Appeal held that Mr Lee had been discriminated against, but the UK Supreme Court allowed the bakers' appeal on the ground that they had not refused to serve the applicant because he was gay, but because they objected to being required to promote a message that they profoundly disagreed with, something the law did not require them to do.
Before the Human Rights Court the applicant complained that his rights had been interfered with by a public authority – the Supreme Court – by its decision to dismiss his claim, and that the interference had not been proportionate. The court reiterated that in order for a complaint to be admissible, the Convention arguments had to 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.