A man who was told by a bakery it couldn't make him a "Support Gay Marriage" cake has seen his discrimination case thrown out by an appeal court.
The European Court of Human Rights (ECHR) in Strasbourg, north-eastern France, has ruled against the Northern Ireland gay rights activist Gareth Lee, describing his application as "inadmissible", a statement released this morning says.
It added that Mr Lee had failed to "exhaust domestic remedies" in his case.
In 2018, the UK Supreme Court ruled that Mr Lee was not discriminated against when Ashers bakery in Belfast refused to make him a cake with the slogan supporting gay marriage.
Mr 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.
The Court's statement read: "The Court reiterated that in order for a complaint to be admissible, the Convention arguments must 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.
"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."
Mr Lee had claimed 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.
The high-profile controversy first flared when Mr Lee, a member of the LGBT advocacy group QueerSpace, 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.
Mr Lee then launched the legal case, supported by Northern Ireland’s Equality Commission, alleging discrimination on the grounds of his sexuality.
He won hearings at the county court and the Northern Ireland Court of Appeal in 2015 and 2016.
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.
The 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.”
Mr 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.
After today's ruling, Mr Lee said he had "hoped for a different outcome".
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.
"I am 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.
"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."
His lawyer, Ciaran Moynagh of Phoenix Law, said they would consider whether to bring a fresh court challenge under domestic law.
Mr Moynagh said: "Mr Lee brought the appropriate and only application available to him and dealt with all arguments that arose in the course of appeals.
"We are clear that Mr Lee's convention rights were engaged and put forward during the litigation.
"Given the position the European court has taken, we will now consider whether a fresh domestic case is progressed.
"The substantive issues raised by my client in his application to the ECHR remain unaddressed and this is a missed opportunity.
"Today's decision means that the law here in NI remains in a state of uncertainty as to how persons' rights can be protected.
"Owners of limited companies have long taken advantage of being able to separate themselves financially from their business.
"We continue to believe they should also keep their political and religious views separate."
Belfast-based human rights group the Committee on the Administration of Justice (CAJ) described the ECHR ruling in the "gay cake" case as a "missed opportunity".
Daniel Holder, deputy director of the CAJ, said: "The European Court of Human Rights having not been able to deal with this issue on a technicality is a missed opportunity for it to clarify its case law on sexual orientation and discrimination in the private sector, particularly when it is said to relate to the message rather than the customer.
"We believe this leaves an ambiguity whereby individuals and organisations across Europe actively campaigning on gay rights would be particularly vulnerable to a commercial business refusing to provide services like printing posters, leaflets, setting up websites, etc, through claiming an exemption to non-discrimination laws on the basis of 'it's not you, it's your message'."
LGBTQ support group the Rainbow Project said the ECHR ruling was disappointing.
Director John O'Doherty said: "This case was taken against the UK Government for its failure to protect Mr Lee from discrimination.
"The County Court and the NI Court of Appeal confirmed the scope of anti-discrimination law in Northern Ireland.
"When a commercial business is providing services to the public, they cannot discriminate against their customers or clients on any grounds protected by equality law.
"The subsequent decision of the UK Supreme Court created legal uncertainty, not just in Northern Ireland but across the UK.
"Unfortunately, with today's decision, that uncertainty will remain.
"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."
Nancy Kelley, CEO of Stonewall, said: ‘Today’s decision by the European Court of Human Rights is a backwards step for equality. Human rights belong to people, not businesses. No business should discriminate against their customers, and no discriminatory behavior should be held up by equality law.
"Today’s decision leaves the door open for legal uncertainty across the UK and causes continued unease for our communities.
"Our thoughts are with Gareth Lee, who deserved more support from the European Courts after seven years of working towards equality.
"At Stonewall, we will continue to work with our partners, the Rainbow Project, to address the implications of this judgement for all lesbian, gay, bi, trans and queer communities.’
