European Court of Human Rights unable to hear gay marriage “cake” case

Lee v United Kingdom

The European Court of Human Rights has, by a majority, declared an application made by Gareth Lee is inadmissible as he had not first exhausted his domestic remedies.

In order for a complaint to be heard by the European Court of Human Rights (ECtHR) about an interference with a person’s rights under the European Convention on Human Rights, the complainant must have first invoked, and exhausted those rights expressly (or in substance) in domestic proceedings.

The facts

In 2014, Gareth Lee brought a discrimination claim against Ashers Bakery and its owners, Mr and Mrs McArthur, following their refusal to supply him with a cake iced with the slogan ‘Support Gay Marriage’.

Mr and Mrs McArthur had initially accepted the order to produce the cake, but later cancelled the order, apologised to Mr Lee and provided a full refund. They explained that they regarded its message as fundamentally against their Christian beliefs.

Previous decisions

The Claimant referred the matter to the Equality Commission of Northern Ireland, which supported him in his action for discrimination in the supply of goods and services by the bakery and the McArthurs.

In defending the claim, the bakery and its owners invoked their rights under Articles 9 (freedom of thought conscience and religion) and 10 (freedom of expression) of the Convention.

The McArthurs insisted that they had not refused the order because of Mr Lee’s sexual orientation, but 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 McArthurs argued that they would have supplied a cake to the Claimant, regardless of his sexual orientation, absent the slogan, and they would have refused to supply a cake supporting the legalisation of same-sex marriage had it been ordered by a heterosexual or bisexual couple.

At the first instance it was held that failure to fulfil the order had been direct discrimination on the grounds of the applicant’s sexual orientation and his religious beliefs or political opinions in breach of the Fair Employment and Treatment (Northern Ireland) Order 1998 and the Equality Act (Sexual Orientation) Regulations (Northern Ireland) 2006. It was accepted that the bakery owner’s Article 9 rights were engaged, however their manifestation of their beliefs in the commercial sphere was not permitted if it were contrary to the rights of others.

This decision was upheld by the Court of Appeal, but later overturned by the Supreme Court, which held that there had been no less favourable treatment on the grounds of religious belief because the bakery owners had not refused to serve the applicant because he was gay, but rather because they objected to being required to promote a message that they profoundly disagreed with.

The ECtHR application

Mr Lee appealed to the ECtHR, relying on a number of his Convention rights and arguing that they had been interfered with by the Supreme Court in reaching its decision to dismiss his claim for breach of statutory duty, and that the interference had not been proportionate.

The Court found that in order for a complaint to be admissible, the Convention arguments must have been raised explicitly or in substance before the domestic authorities. The applicant had not invoked his Convention rights at any point in the domestic proceedings. As a result of his failure to exhaust domestic remedies, the application was inadmissible.

Comment

The case reminds us of the limits of anti-discrimination legislation first made clear by the Supreme Court in 2018, the continuing jurisdiction of the ECtHR even in the post-brexit landscape and reiterates the high threshold which must be met in order to mark an appeal to the ECtHR. The ECtHR was set up in order to address breaches of the European Convention on Human Rights (ECHR), both of which exist outside of the EU. The Human Rights Act 1998 created a remedy for a breach of convention rights capable of being pursued in the UK courts. While the UK remains a party to the ECHR, cases will continue to be brought in the ECtHR and while the Human Rights Act 1998 remains in force, convention rights’ breaches will remain capable of being pursued in the UK courts.