The European Court of Human Rights declined to take up a case related to a gay activist’s complaint that they were unlawfully discriminated against by the owners of a Northern Ireland bakery that refused to bake a cake expressing a message of support for same-sex marriage.
In 2014, Gareth Lee, who was involved in the fight to legalize same-sex marriage in Northern Ireland over the past decade, had asked Ashers Baking Co., in Belfast, to create a cake decorated with Sesame Street characters Bert and Ernie that read: “Support Gay Marriage.” The McArthur family, who runs Ashers, said they were happy to bake goods for anyone but would not put messages on their products that run counter to their Christian beliefs.
In May 2015, a Belfast county court and a court of appeal ruled that the company had discriminated against Lee based on his sexual orientation by refusing to bake the custom-made cake Lee had requested. The court ordered Ashers to pay a $500 in damages to Lee.
But in 2018, the U.K. Supreme Court reversed that decision, finding that the bakery’s refusal did not amount to discrimination. Lee then took his case to the European Court of Human Rights, arguing that the U.K. Supreme Court’s decision violated rights guaranteed by the European Convention on Human Rights, reports The Associated Press.
But last week, the top European court said the case was inadmissible because Lee and his legal team failed to “exhaust domestic remedies” in bringing his case against Ashers, specifically failing to raise the convention and the rights guaranteed by it in court proceedings. As a result, the Supreme Court’s 2018 decision was allowed to stand.
“[T]he 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,” the court wrote in its decision. “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.”
Lee and his solicitor expressed disappointment with the European Court’s rulings, complaining that the Strasbourg-based court based its decision on a “technicality,” rather than the underlying merit of the issues raised in the case, such as the right to access public accommodations or obtain goods and services that are otherwise made available to other groups.
“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.” Lee said, according to The Guardian. “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.”
Ciaran Moynagh of Phoenix Law, Lee’s solicitor, left open the possibility of launching a new challenge against the bakery in the future.
Simon Calvert, a spokesperson for the Christian Institute, which represented the McArthurs, hailed the decision as a victory for free speech, claiming: “It protects gay business owners from being forced to promote views they don’t share, just as much as it protects Christian business owners.”
Northern Ireland’s first minister, Paul Givan, said the case “should never have been brought to court in the first place.”
Meanwhile, LGBTQ advocates expressed disappointment with the court’s ruling.
John O’Doherty, the director of the Rainbow Project, Northern Ireland’s top LGBTQ organization, said that while the case is closed, the courts have failed to permanently resolve questions about what protections LGBTQ people are entitled to under law.
Nancy Kelley, the CEO of the UK LGBTQ rights organization Stonewall, called the decision “a backwards step for equality.”
“Human rights belong to people, not businesses,” Kelley said. “No business should discriminate against their customers, and no discriminatory behavior 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.”
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