Gay marriage-cake case declared inadmissible by Strasbourg Court

7 January 2022 by Rosalind English

Lee v. the United Kingdom (application no. 18860/19)

The European Court of Human Rights has, by a majority, declared the application inadmissible. The decision is final.

Background facts and law

The case concerned the refusal by a Christian-run bakery to make a cake with the words “Support Gay Marriage” and the QueerSpace logo on it which the applicant had ordered and the proceedings that had followed. The following summary is based on the Court’s press release.

The applicant, Gareth Lee, is a British national who was born in 1969 and lives in Belfast. He is associated with QueerSpace, an organisation for the lesbian, gay, bisexual and transgender community in Northern Ireland.

Although same-sex marriage had been enacted in the rest of the UK in 2014, it was made legal in Northern Ireland only in 2020.

In 2014, Mr Lee ordered a cake for a gay activist event set to take place not long after the Northern Irish Assembly had narrowly rejected legalising same-sex marriage for the third time. He ordered it from Asher’s bakery. The cake was to have an image of Bert and Ernie (popular children’s television characters), the logo of QueerSpace, and the slogan “Support Gay Marriage”. He paid in advance.

The following day the bakery called him to say it would not fulfil his order because it was a “Christian business”. The bakery apologised and refunded his money.

Mr Lee brought an action for breach of statutory duty in and about the provision of goods, facilities and services against the bakery and its owners. In response, 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 bakery 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. They would have supplied the cake to the applicant, absent the slogan, and they would have refused to supply a cake to a heterosexual or bisexual customer requesting the same or similar slogan.

The County Court found that the 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. The County Court accepted that the bakery owners’ Article 9 rights were engaged but held that they were not entitled to manifest their religious beliefs in the commercial sphere if this would be contrary to the rights of others. It considered that Article 10 was not engaged because the bakery had not been required to support, promote or endorse Mr Lee’s view.

The Court of Appeal upheld that decision, noting the possibility for arbitrary abuse if businesses were free to choose what services to provide to the gay community on the basis of religious belief.

The Supreme Court overturned the decision. It 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. Even if there had been discrimination on grounds of political opinion, it held that the 1998 Order should not be read in a way which required the bakery owners to express a message with which they profoundly disagreed.

Relying on Article 8 (right to respect for private life), Article 9 (freedom of thought conscience and religion) and Article 10 (freedom of expression), both alone and in conjunction with Article 14 (prohibition of discrimination) of the Convention, the applicant complained that his rights had been interfered with by a public authority – the Supreme Court – by its decision to dismiss his claim for breach of statutory duty, and that the interference had not been proportionate.

Decision of the Court

The Court reiterated that in order for a complaint to be admissible, the Convention arguments must be raised explicitly or in substance before the domestic authorities. The applicant had not invoked his Convention rights at any point in the domestic proceedings. Because he had failed to exhaust domestic remedies, the application was inadmissible.

Comment

The applicant did not rest his case on his Convention rights in the NI courts, but the defendant bakery did. The County Court found that insofar as the applicant’s complaint was brought against Ashers Baking Company Ltd, rather than its owners, as a limited company it could not itself invoke the protection afforded by Article 9 of the Convention. And the Supreme Court found no evidence that the bakery had discriminated on that or any other prohibited ground in the past. The evidence was that they had both employed and served gay people and treated them in a non-discriminatory way. The Court did not, therefore, accept that the reason for refusing to supply the cake was that the applicant was thought to associate with gay people: the reason was the company’s religious objection to gay marriage.

It concluded therefore that there was a lack of sufficiently close “association” in the circumstances for a finding of associative direct discrimination to be upheld. Accordingly, there had been no discrimination against the applicant on grounds of sexual orientation.

… In a nutshell, the objection was to the message and not to any particular person or persons.

The Supreme Court did consider that the bakery was indirectly bound by the Human Rights Act and the Convention, because under section 6 of the Human Rights Act 1998 it is unlawful for a public authority to act in a way which is incompatible with a Convention right. In this section “public authority” includes “a court or tribunal”.

According to section 7, a person who claims that a public authority has acted incompatibly with a Convention right may bring proceedings against the authority under the Act or rely on the Convention right or rights concerned in any legal proceedings.

The trouble is, for the purposes of exhausting local remedies as an admissibility requirement to the Strasbourg Courts, the applicant chose to rely on domestic law not the Convention. Had he made his claim under Articles 8, 9 and 10, both alone and in conjunction with Article 14 of the Convention, and lost, he would have exhausted his local remedies and the case would have been heard on the merits by the Strasbourg Court. The UK government was thus able to argue as a preliminary objection that

It would have been open to him [the applicant] to argue that reading down or disapplying the domestic legislation would have breached his own Convention rights; instead, his core submission was that “the legislature and government had determined how the conflict of rights arising in this appeal should be resolved and formulated rules that worked in the commercial sphere”. He could not point to one direct reference to his Convention rights in his submissions to the domestic courts.

Nor would it have been sufficient for the applicant to have raised his Convention complaints “in substance”; his Convention rights had to be positively asserted before the domestic courts. The question was whether he requested the domestic courts to consider his Convention rights, not whether his submissions allowed them to do so (Peacock v. the United Kingdom ((dec.), no. 52335/12, 5 January 2016).

The applicant’s contention that reference to his rights under the Convention would have added nothing to his case before the domestic law held little weight with the Strasbourg Court. The majority pointed out that the general principles of the Court’s case-law on the question of admissibility are set out in Vučković and Others v. Serbia ((preliminary objection) [GC], nos. 17153/11 and 29 others, §§ 69‑77, 25 March 2014).

In particular, the Court has held that the specific Convention complaint presented before it must have been aired, either explicitly or in substance, before the national courts.

The moral of the Gareth Lee story is: if you want to get across the threshold of the Strasbourg Court, pay attention to its admissibility requirements. It’s not enough to wait until your case has been rejected by the highest appellate court in the land. By relying solely on domestic law, said the Court,

the applicant deprived the domestic courts of the opportunity to address this important issue themselves before he lodged his application with the Court.

… In view of the fact that the Human Rights Act 1998 gives litigants the right to invoke their Convention rights directly before the domestic courts, and obliges those courts, so far as it is possible to do so, to read and interpret both primary and subordinate legislation in a way which is compatible with those rights (see paragraphs 46 and 47 above), the Court does not consider that the applicant has provided a satisfactory explanation for not advancing his Convention rights (see, mutatis mutandis, Peacock, cited above, § 38).

… It would have been open to the applicant – and in the Court’s view, it was incumbent on him – to contend that “reading down” or “disapplying” the relevant provisions of the 2006 Regulations and the 1998 Order would violate his own rights under Articles 8, 9, 10 or 14 of the Convention. 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 now relies. Instead, he now invites the Court to usurp the role of the domestic courts by addressing these issues itself.

…such an approach is contrary to the subsidiary character of the Convention machinery [my italics]

In his Twitter feed on the case, Joshua Rozenberg observed that Gareth Lee lost his chance in Strasbourg because he relied only on Northern Ireland anti-discrimination law, thus depriving the UK courts of the opportunity of addressing human rights issues, “instead asking the Court to usurp the role of the domestic courts”:

It’s because of the 1998 legislation that the UK won. The more the government restricts its availability in the UK courts, the more likely it is to suffer future defeats in Strasbourg.