By Conor Courtney
The European Court of Human Rights (ECtHR) has dismissed the so-called “gay cake” case brought by Gareth Lee, a UK national, represented by Ciaran Moynagh of Phoenix Law, against the United Kingdom government.
The ECtHR found that Mr Lee had relied on national legislation to advance his discrimination claims in the domestic courts, and not Articles 8, 9 or 10 of the Convention.
By relying solely on domestic law, the applicant deprived the domestic courts of the opportunity to address this important issue themselves before he lodged his application with the European court, and the court therefore declared the application inadmissible.
Mr Lee, a gay man, was associated with an organisation called QueerSpace, which is a volunteer-led organisation for the lesbian, gay, bisexual and transgender community in Northern Ireland.
He planned to attend a private event on 17 May 2014, to mark both the end of the Northern Ireland Anti-Homophobia and Transphobia Week and the gathering political momentum towards legislation for same-sex marriage.
He decided to purchase a cake to bring to the private event, from Ashers Baking Co. Limited, designed with a picture of Bert and Ernie, the logo of QueerSpace and the headline caption, “Support Gay Marriage”.
On 12 May 2014, he received a telephone call from Ashers indicating that the order could not be fulfilled. The reason given was that they were a Christian business and, in hindsight, should not have taken the order.
The applicant brought an action against Ashers as a limited company and its owners, Mr and Mrs McArthur, in the County Court, claiming he had been discriminated against contrary to the provisions of The Equality Act (Sexual Orientation) Regulations (Northern Ireland) 2006.
The County Court proceedings
The question before the County Court was whether there had been any direct or indirect discrimination on grounds of sexual orientation, or on grounds of political opinion or religious belief.
Mr Lee argued that the McArthurs took exception to his sexual orientation, which they considered sinful; and that, in placing the order, he had not asked them to support or promote his cause, but rather to bake a cake.
The McArthurs, on the other hand, argued that the order was refused not because of the applicant’s sexual orientation, of which they had no knowledge, but rather because they believed that providing the cake would have promoted and supported the political campaign for legalisation of same-sex marriage in Northern Ireland, which they regarded as sinful and against their Christian beliefs.
The County Court found that the defendants had directly discriminated against the applicant on the ground of his sexual orientation contrary to the 2006 Regulations, for which there could be no justification.
The defendants appealed the decision by way of case stated before the Court of Appeal.
Court of Appeal proceedings
The Court of Appeal found that there had been associative direct discrimination against the applicant on the ground of sexual orientation (that is, direct discrimination by virtue of his association with the gay and bisexual community), and did not consider it necessary to read down or disapply the provisions of the 2006 Regulations.
The court considered the possibility of arbitrary abuse if businesses were free to choose what services to provide to the gay community on the basis of religious belief. The Court of Appeal also agreed with the lower court that the defendants had not been required to promote or support gay marriage by providing a cake.
UK Supreme Court proceedings
In the Supreme Court’s view, the Court of Appeal’s finding had suggested that the reason for cancelling the cake order was that the applicant was likely to associate with the gay community, of which the McArthurs disapproved.
However, the Supreme Court found no evidence that the bakery had discriminated as such in the past, because “they had both employed and served gay people and treated them in a non-discriminatory way”. Therefore, the reason for refusing to supply the cake was not that the applicant was thought to associate with gay people, but due to the McArthurs’ religious objection to gay marriage.
The Supreme Court observed that: “The objection was to being required to promote the message on the cake. The less favourable treatment was afforded to the message not to the man.”
Following the Supreme Court decision, Mr Lee complained under Articles 8, 9, 10 and 14 of the ECHR, that his rights were interfered with by a public authority (namely, the Supreme Court) by its decision to dismiss his claim for breach of statutory duty; and that the interference was not proportionate.
The government argued that Mr Lee had not exhausted domestic remedies as he failed to raise his complaints under Articles 8, 9, 10 and 14 of the Convention in the domestic proceedings.
Mr Lee contended that:
he raised his Convention arguments in substance, as the domestic law provisions relied on were enacted to protect his rights under Articles 8, 9, 10 and 14 of the Convention; and
that in any event the violations later complained of only crystallised upon the handing down of the judgment of the Supreme Court.
Ultimately, the court found that the applicant did not invoke his Convention rights expressly at any point in the domestic proceedings. Instead, he formulated his claim by reference to the 2006 Regulations and the 1998 Order. The court was not persuaded by either of Mr Lee’s submissions.
The court found that the 2006 Regulations and the 1998 Order were enacted to protect the Convention rights of consumers, in a very limited way, against discrimination in access to goods and services. They could not, therefore, be relied on to protect consumers’ substantive rights under Articles 8, 9 or 10 of the Convention.
By relying solely on domestic law, the applicant deprived the domestic courts of the opportunity to address this important issue themselves before he lodged his application with the European Court. The domestic courts were better placed than the ECtHR to strike the balance between the competing Convention rights of the applicant, on the one hand, and the McArthurs, on the other.
In choosing not to rely on his Convention rights, the applicant deprived the domestic courts of the opportunity to consider both the applicability of Article 14 to his case and the substantive merits of the Convention complaints on which he was now relying. Instead, it was held that he was now inviting “the court to usurp the role of the domestic courts by addressing these issues itself”.
The Court determined that the applicant had failed to exhaust domestic remedies in respect of his complaints under Articles 8, 9 and 10 of the Convention, read alone and together with Article 14. Accordingly, these complaints were rejected as inadmissible pursuant to Article 35 ss1 and 4 of the Convention.