The “Gay Cake Case” – A Warning For Future Discrimination Cases
Facts of the case
The so-called “Gay Cake Case” turned on whether it was lawful for a bakery to decline to take a customer’s order for a bespoke cake if the proposed icing design included a written message that the bakers disagreed with, namely “support gay marriage”. Ashers Baking Company Limited, a Christian-run Belfast bakery, refused to make such a cake for Mr Gareth Lee, a gay rights activist. Ashers argued that the slogan contravened their Christian beliefs. Mr Lee brought proceedings against Ashers alleging discrimination on the grounds of sexual orientation and/or political opinion contrary to the Equality Act (Sexual Orientation) Regulations (Northern Ireland) 2006.
In the domestic UK courts
At first instance in the County Court, the district judge found in Mr Lee’s favour. The district judge found that the refusal to make the cake was direct discrimination on the grounds of sexual orientation and political opinion. Ashers appealed to the Northern Ireland Court of Appeal, which dismissed the appeal.
Ashers then appealed to the Supreme Court, which unanimously decided to allow the appeal and overturned the decision of the two lower courts. The Supreme Court found that there had been no discrimination by Ashers on the grounds of sexual orientation as Ashers’ objection was to the message “support gay marriage” and not Mr Lee’s sexual orientation or that of anyone associated with Mr Lee. The Supreme Court found that there was no evidence to support that Mr Lee had been discriminated against on the grounds of his political beliefs. The objection was not that Mr Lee supported gay marriage rather it was requiring Ashers to promote the message ”support gay marriage”. The Supreme Court considered Ashers owners’ rights under the European Convention on Human Rights (ECHR) and commented that Ashers owners should not be obliged to supply a cake iced with a message with which they profoundly disagree.
In the European Court of Human Rights
Mr Lee lodged an application with the European Court of Human Rights in Strasbourg. The Strasbourg Court ruled Gareth Lee’s case inadmissible because he had not invoked his rights under the ECHR at any point in the domestic proceedings in the UK courts. Interestingly, in comparison, Ashers had invoked their rights under the ECHR in the UK courts. By relying solely on domestic law, Mr Lee had deprived the domestic courts of the opportunity to address any ECHR issues raised, instead asking the Strasbourg Court to assume the role of the domestic courts. Because he had failed to exhaust domestic remedies, the application was inadmissible.
A stark warning
In order for a complaint to the European Court of Human Rights to be admissible, ECHR arguments must be raised explicitly or in substance before the domestic court. Had Mr Lee invoked his rights under the ECHR and lost in the Supreme Court, then he would have exhausted his domestic remedies and his case could have been heard by the Strasbourg Court. Mr Lee could have invoked his rights under Articles 8 (right to respect for private and family life), 9 (freedom of thought, conscience and religion) and 10 (freedom of expression), both alone and in conjunction with Article 14 (prohibition of discrimination) in the UK courts.
This case acts as a stark warning that if there are ECHR arguments in a case, they should be raised expressly before the domestic courts in order to keep the door open for a future application to the Strasbourg Court.
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