An LGBT campaigner who challenged a bakery of their refusal to create a “support gay marriage” cake has lost his appeal at court.
The case against Ashers Bakery was thrown out by the European Court of Human Rights (ECHR) based in France, after a legal dispute which has lasted over six years.
The court ruled against the gay rights activist Gareth Lee, describing his application as “inadmissible”, a statement released this morning said.
Additionally, it pointed to the fact that Mr Lee didn’t “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.
Lawyers for Gareth Lee argued that “his rights were interfered with by a public authority – the Supreme Court – by its decision to dismiss his claim for breach of statutory duty to provide services, and that the interference was not proportionate”.
The case was taken against the UK as a member state of the European Court. The bakery, and the McArthur family who own and run it, were not parties to the action.
However, both they and The Christian Institute, who supported Ashers Bakery throughout the case, were given permission to present submissions to ECHR, which accepted the substance of those submissions.
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.
The cake featured Sesame Street puppets Bert and Ernie and was 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.”
Daniel McArthur and his wife Amy McArthur of Ashers Bakery arrive outside the Supreme Court sitting in Belfast to speak to the press on May 1, 2018
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.”
The Christian Institute spokesman Simon Calvert, welcomed the ECtHR’s decision as “the right result”.
“This is good news for free speech, good news for Christians, and good news for the McArthurs,” he said.
“The UK Supreme Court engaged at length with the human rights arguments in this case and upheld the McArthurs’ rights to freedom of expression and religion.
“It was disappointing to see another attempt to undermine those rights, so it is a relief that the attempt has failed.
“I’m surprised anyone would want to overturn a ruling that protects gay business owners from being forced to promote views they don’t share, just as much as it protects Christian business owners.”
He continued: “The ruling in October 2018 by five of the country’s most distinguished and experienced judges was welcomed by lawyers, commentators and free speech experts from across the spectrum.
“They all knew of the implications for freedom of speech and religion, had the decision gone against Ashers.
“This could have included a Muslim printer being forced to print cartoons of Mohammed, or a lesbian-owned bakery being forced to make a cake describing gay marriage as an ‘abomination’.”
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