In 2018 the Supreme Court decided that the Christian owners of a bakery in Northern Ireland did not discriminate against Mr Lee, a gay man, when they refused to decorate a cake with a message supporting same-sex marriage.
Mr Lee applied to the European Court of Human Rights, claiming that the Supreme Court's decision infringed his Convention rights. His application has been declared inadmissible.
In 2014 Mr Lee placed an order with Ashers Baking Co. Limited in Belfast ('Ashers'). He wished a cake decorated with Bert and Ernie and the words, "Support Gay Marriage".
Mr Lee's order was accepted. However, he subsequently received a call from Ashers telling him that the order could not be fulfilled given Ashers was a Christian business. An apology and a refund were offered.
Mr Lee made a complaint to the Equality Commission for Northern Ireland. With their support, he brought an action against Ashers and its owners. He claimed that he had been discriminated against on grounds of sexual orientation and/or political opinion.
Domestic court proceedings
At the County Court, Mr Lee claimed that the bakery's owners took exception to his sexual orientation. The bakery's owners argued that the order was not refused because of Mr Lee’s sexual orientation, but because they believed that providing the cake would have promoted the political campaign for legalising same‑sex marriage in Northern Ireland, which was against their Christian beliefs. They would have supplied the cake to Mr Lee, without the slogan, and they would have refused to supply a cake to a heterosexual customer requesting the same or similar slogan.
The Court found that Mr Lee had been directly discriminated against on grounds of sexual orientation. In the context of the ongoing debate surrounding same-sex marriage in Northern Ireland at the time, it also held that his support constituted a political opinion and he had been directly discriminated against on these grounds too.
The Court held that whilst the bakery's owners had a right to hold religious views, they were limited as to how they manifested them in the commercial sphere. Mr Lee was awarded £500.
The County Court's decision was upheld by the Court of Appeal but overturned by the Supreme Court.
The Supreme Court found no evidence that the bakery had discriminated against Mr Lee. The evidence was that Ashers employed and served gay people and treated them in a non-discriminatory way. The Supreme Court held that:
"...The bakery could not refuse to provide a cake – or any other of their products – to Mr Lee because he was a gay man or because he supported gay marriage. But that important fact does not amount to a justification for something completely different – obliging them to supply a cake iced with a message with which they profoundly disagreed…"
"…In a nutshell, the objection was to the message and not to any particular person or persons."
European Court of Human Rights
Mr Lee lodged an application with the European Court of Human Rights ('ECHR') claiming that his rights under:
- Article 8 (right to respect for private and family life),
- Article 9 (right to freedom of thought, conscience and religion),
- Article 10 (right to freedom of expression), and
- Article 14 (prohibition of discrimination) of the European Convention on Human Rights,
were interfered with by the Supreme Court, by its decision to dismiss his claim.
The European Court of Human Rights declared the application inadmissible.
It held that where an applicant is complaining that the domestic courts failed properly to balance their Convention rights against those of another private individual, such claims must have been aired, either explicitly or in substance, before the national courts.
Although the owners of the bakery invoked their rights under Articles 9 and 10 of the Convention, Mr Lee had not previously explicitly submitted that his Convention rights should be balanced against theirs. He had relied on domestic anti-discrimination legislation to pursue his claims.
The fact that the ECHR is not going to decide the long-running 'gay-cake' case might be viewed as a missed opportunity. Both the national and European courts acknowledged that there is a difficult balance to be struck between competing rights under both discrimination legislation and the Convention rights, and more guidance would have been welcome.
The decision highlights the importance of considering potential breaches of Convention rights at an early stage and ensuring such arguments are advanced during proceedings (although the UK has left the European Union, it is still a participant in the European Convention on Human Rights).
It is also serves as a reminder for employers of the possibility of a clash of rights in the workplace, and the need for effective equality and diversity policies and training.