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Digesting the ‘Support Gay Marriage’ cake case: three years on

  • October 2021

Three years ago, the Supreme Court handed down its much-anticipated judgment in Lee (Respondent) v Ashers Baking Company Ltd and others (Appellants) (Northern Ireland) [2018] UKSC 49 (see details below). The bakery and its owners won their appeal, but this did not mark the end of the issue for Mr Lee. In April 2019, he lodged an application against the UK before the European Court of Human Rights (ECtHR), challenging the Supreme Court’s decision. Subsequently, in March 2020, the ECtHR communicated the case to the UK Government for its response (see Lee v The United Kingdom (communicated case) App no 18860/19 (ECtHR, 6 March 2020).

While the Supreme Court’s judgment has received extensive comment, there has been little coverage of Mr Lee’s complaint before the ECtHR. In anticipation of further developments in Lee v The United Kingdom, this post recaps the background, including the Supreme Court’s judgment, and sets out the ECtHR proceedings to date.

The background
Mr Lee, a gay man, associated with the organisation QueerSpace, placed an order with Ashers Baking Company Ltd in 2014 for a cake to be iced with a depiction of the characters Bert and Ernie from Sesame Street, the QueerSpace logo, and the message ‘Support Gay Marriage’. The Christian bakery owners, Mr and Mrs McArthur, refused to fulfil the order because of their religious belief that gay marriage is incompatible with Biblical teaching. Following this, Mr Lee brought an action for breach of statutory duty. He claimed that he had been discriminated against contrary to the provisions of the Equality Act (Sexual Orientation) Regulations (Northern Ireland) 2006 (the ‘2006 Regulations’) and The Fair Employment and Treatment (Northern Ireland) Order 1998 (the ‘1998 Order’) which prohibit direct or indirect discrimination on grounds of sexual orientation, political opinion or religious belief.

At the Belfast County Court, Mr Lee’s claim was successful. The District Judge held that the refusal to fulfil Mr Lee’s order constituted direct discrimination on grounds of sexual orientation and on grounds of religious belief or political opinion. When the bakery and the McArthurs appealed the decision to the Northern Ireland Court of Appeal, Mr Lee was successful once again because the Court of Appeal held that Mr Lee had suffered associative direct discrimination on the grounds of sexual orientation. The bakery and the McArthurs then appealed to the Supreme Court.

The Supreme Court’s judgment
In Lee v Ashers Baking Company Ltd and others (handed down on 10 October 2018), the Supreme Court reversed the decisions of the Belfast County Court and the Northern Ireland Court of Appeal. The Supreme Court unanimously held that there had been no discrimination on grounds of sexual orientation nor on grounds of religious belief or political opinion.

The Supreme Court found no discrimination in relation to sexual orientation because it held that the objection was to the message on the cake and not to Mr Lee or anyone with whom he associated. It noted that ‘[p]eople of all sexual orientations, gay, straight or bi-sexual, can and do support gay marriage. Support for gay marriage is not a proxy for any particular sexual orientation’ [25].

Similarly, in respect of the claim of discrimination on grounds of political opinion, the Court held that the objection was to being required to promote the message on the cake and not to ‘Mr Lee because he, or anyone with whom he associated, held a political opinion supporting gay marriage’ [47].

However, the Court did consider that there was a much closer association between the message and Mr Lee’s political opinions than between the message and his sexual orientation and, as such, it accepted that it could be argued that they were ‘indissociable’ for the purpose of direct discrimination on grounds of political opinion [48]. Consequently, the Court deemed it appropriate to consider the impact of the McArthurs’ rights under the European Convention on Human Rights (ECHR) on the meaning and effect of the 1998 Order.

The central issue for the Court was that the McArthurs had been asked to produce a cake bearing a message with which they deeply disagreed. The Court observed that ECHR Article 9 (the right to freedom of thought, conscience and religion) and Article 10 (the right to freedom of expression) protect individuals from being obliged to hold or manifest a religion or belief that they do not hold. This led the Court to conclude that the 1998 Order ‘should not be read or given effect in such a way as to compel providers of goods, facilities and services to express a message with which they disagree unless justification is shown for doing so’ [56], and no such justification had been shown in this case.

ECtHR proceedings to date
Mr Lee’s challenge to the Supreme Court’s judgment was set out by the ECtHR in Lee v The United Kingdom (published 23 March 2020). Before the ECtHR, Mr Lee complained that the decision by a public authority (namely, the Supreme Court) to dismiss his claim for breach of statutory duty due to discrimination contrary to the provisions of the 2006 Regulations and the 1998 Order, interfered with a number of his ECHR rights. He complained under ECHR Article 8 (right to respect for private and family life), Article 9, Article 10, and Article 14 (prohibition of discrimination) taken in conjunction with those Articles. He contended that the interference was disproportionate and that the Supreme Court had ignored the ‘democratically chosen resolution to the conflict of rights between religious organisations and persons of same-sex orientation, and those supporting the aspirations of such persons’.

On 6 March 2020, after setting out the statement of facts, the ECtHR put the following three main questions to the parties:
1. Has the applicant exhausted domestic remedies in respect of his complaints under ECHR Articles 8, 9, 10 and 14?
2. If so, has there been an interference with Mr Lee’s rights under Articles 8, 9 and 10 both alone and in conjunction with Article 14, and was that interference in accordance with the law and necessary in a democratic society?
3. In this context, what is the appropriate test to be applied in a case concerning a dispute of a “purely private nature”?

According to the lawyers acting for Mr Lee, the UK Government had until June 2020 to formally respond to the questions. To date, no updates on this case appear to have been provided by the ECtHR, but further developments are expected in due course. Considering the significance of Lee v Ashers Baking Company Ltd and others, it will certainly be interesting to see how Lee v The United Kingdom progresses.

D 11 October 2021    ACaroline K Roberts

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