‘Gay cake’ discrimination case: man loses seven-year battle after European Court of Human Rights rules case inadmissible


The European Court of Human Rights has thrown out a high-profile case over a bakery in Belfast refusing to make a cake with “support gay marriage” written on it.


Gareth Lee started legal action back in 2014 after a Christian-run bakery in Belfast refused to make him a cake with the decorative message “Support Gay Marriage” next to Sesame Street puppets Bert and Ernie. The family-run firm, Ashers, claimed that the gay marriage slogan contradicted their evangelical Christian beliefs.


The long-running dispute has sparked questions and debate over the conflict between religious freedom and discrimination laws.


In 2016, a Belfast county court and a court of appeal both ruled that Lee had been discriminated against by the bakery because of his sexual orientation.


However two years later, in 2018, the UK Supreme Court disagreed with the lower courts’ ruling , finding in favour of the bakery, saying that Ashers were objecting to the slogan on the cake, rather than to Lee himself.


Ashers Bakery is run by evangelical Christians


Mr Lee then took his case to the European Court of Human Rights, where it was examined by seven judges who decided, on January 6, by majority, that it should be dismissed.


The ECHR ruled the case inadmissible on a legal technicality because Mr Lee had not invoked his rights under the European Convention of Human Rights “at any point in the domestic proceedings” in the UK courts.


The judges decided that in order for a complaint to be admissible, “the Convention arguments must be raised explicitly or in substance before the domestic authorities”.


“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,” said the ruling.


A different bakery eventually made the cake that Ashers had refused to bake. Image: Facebook/QueerSpace


“The supreme court found on the facts of the case that the applicant was not treated differently on account of his real or perceived sexual orientation, but rather that the refusal to supply the cake was because of the defendants’ religious objection to gay marriage.


“What was principally at issue, therefore, was not the effect on the applicant’s private life or his freedom to hold or express his opinions or beliefs, but rather whether Ashers bakery was required to produce a cake expressing the applicant’s political support for gay marriage.”


The ECHR said it sought to balance the rights of Lee against those of Daniel and Amy McArthur, the owners of the bakery, which was “a matter of great import and sensitivity to both LGBTIQ communities and to faith communities”.


“This is particularly so in Northern Ireland, where there is a large and strong faith community, where the LGBTIQ community has endured a history of considerable discrimination and intimidation, and where conflict between the rights of these two communities has long been a feature of public debate”.


Gareth Lee said he was frustrated that the case had been dismissed on a “technicality” Photograph: Niall Carson/PA


Mr Lee shared his disappointment that his case had been dismissed on a “technicality”, saying: “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.”

“Everyone has freedom of expression and it must equally apply to lesbian, gay, bisexual and trans people. I am most frustrated that the core issues did not get fairly analysed and adjudicated upon because of a technicality” he added. 


Stonewall’s CEO, Nancy Kelley, said the ECHR’s decision was: “a backwards step for equality. Human rights belong to people, not businesses. No business should discriminate against their customers, and no discriminatory behaviour should be held up by equality law. Our thoughts are with Gareth Lee, who deserved more support from the European courts after seven years of working towards equality.”


Meanwhile John O’Doherty, director of the Rainbow Project, a Northern Ireland organisation for LGBTQ+ people, said: “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.”