Sexual orientation discrimination: European Court of Human Rights blows out candle on ‘gay cake case’

It began in May 2014, when gay activist Gareth Lee placed an order for a custom cake with Ashers Baking Company (ABC) in Belfast which featured the slogan ‘support gay marriage’. ABC is owned by a Christian couple who cancelled the order on the grounds that making the cake would ‘contradict their religious belief’ that marriage must be between a man and a woman. Lee argued that the cancellation was both sexual orientation discrimination and discrimination against his political beliefs. On this basis, he took ABC to the County Court (CC), seeking £500 in damages.

ABC argued that their refusal to produce the cake was because of its message, not because of the sexual orientation of the requestor. In other words, they would have refused a heterosexual person’s request for the same cake, therefore it wasn’t discrimination against sexual orientation. The CC didn’t doubt ABC’s conviction but said that because support for gay marriage was indissociable from sexual orientation, their actions did amount to direct discrimination.  

ABC appealed the ruling to the Court of Appeal (CoA) who held that the CC’s logic was ‘clearly wrong’ because ‘many heterosexual people support gay marriage and some gay people oppose gay marriage’. However, the decision was upheld on the basis that what had taken place was associative discrimination. That is, there was an association with the gay and bisexual community and the protected personal characteristic was the sexual orientation of that community. ABC appealed to the Supreme Court (SC).

The SC substituted the decision of the CoA, holding that ABC’s ‘objection was to the message on the cake not the personal characteristics of Mr. Lee’ and therefore there was no sexual orientation discrimination nor on grounds of political opinion. In coming to their decision, the SC noted that ABC both employed and served gay people and treated them in a non-discriminatory way.

Lee then made an application to challenge the Supreme Court’s ruling to the European Court of Human Rights (ECtHR), relying on Convention Articles 8 (right to respect for private life), 9 (freedom of thought, conscience and religion) and 10 (freedom of expression). Last week, his application was rejected as inadmissible. For an application to be admissible, Convention arguments must be raised explicitly before the domestic authorities. Lee did not do this, nor did he have a good explanation for not having done this. 

The decision brings to an end a hostile seven year legal saga. Following the ruling, Lee, whose legal battle was backed by the Equalities Commission, said he was disappointed that the ECtHR didn’t address the core issues of the case owing to what he called a ‘technicality’.  The Christian Institute, who supported ABC’s battle, said the decision ‘protects gay business owners from being forced to promote views they don’t share, just as much as it protects Christian business owners.’

It’s a reminder that, in contradiction of the popular maxim, equal rights can be, and often are, pie. Or, in this case, cake. 

This post was written by Jack Dooley, Trainee Solicitor at didlaw.