On 6 January 2022, the European Court of Human Rights (ECtHR) declared Lee v. the United Kingdom (application no. 18860/19) inadmissible due to the failure to exhaust domestic remedies. This case involved the refusal by a Christian-run bakery to produce a cake with the words “Support Gay Marriage”.

BACKGROUND OF THE DECISION

The applicant in this case was a British national who lived in Belfast: Gareth Lee. In 2014, Lee had ordered a cake for a gay activist event that took place shortly after Northern Ireland had narrowly rejected the legalisation of same-sex marriage for the third time. Whilst same-sex marriage became legal in the rest of the UK in 2014, it was only legalised in Northern Ireland in 2020.

Lee had ordered the cake from Ashers Baking Company Limited, a family-run bakery business. The cake was to have (1) a coloured image of Bert and Ernie (two popular children’s television characters from The Muppets), (2) the logo of QueerSpace (a volunteer-led LGBTQ organisation), and (3) the slogan “Support Gay Marriage”. The order for the cake was initially accepted and Lee paid for it in advance. However, the following day, the bakery called Lee to explain that it would not fulfil his order as the bakery was a “Christian business;” instead, it issued an apology and a full refund. Lee was later able to order the cake through an alternative supplier and the cake arrived in time for the event.

Following this, with support from the Equality Commission for Northern Ireland, Lee brought proceedings against the bakery for discrimination on the grounds of sexual orientation. In response, the bakery owners argued that they had not refused the order based on the applicant's sexual orientation (which they claimed they did not know). Rather, the bakery owners claimed that their reason for refusing the order was that they did not want to promote or support the campaign for the legislation of same-sex marriage, which was against their beliefs. To support their argument, the bakery owners invoked their rights under Article 9 (freedom of thought, conscience and religion) and Article 10 (freedom of expression) of the European Convention on Human Rights (ECHR).

PROCEEDINGS BEFORE DOMESTIC COURTS

At first instance, a judge found that the refusal to produce the cake amounted to direct discrimination on the grounds of Lee’s sexual orientation and political opinions, as per the Fair Employment and Treatment (Northern Ireland) Order 1998 and the Equality Act (Sexual Orientation) Regulations (Northern Ireland) 2006. The court acknowledged that the rights of the bakery owners under Article 9 of the ECHR were relevant, but determined that the defendants were not entitled to manifest their religious beliefs in a commercial situation if this resulted in a violation of the rights of others. Additionally, the judge found that Article 10 was not applicable, as the bakery was not expected to support, promote, or endorse Lee’s views by preparing the cake he had commissioned. Overall, the judge at first instance ruled in Lee’s favour, and he was awarded £500 in damages.

However, this decision was appealed and subsequently considered by the Court of Appeal in Northern Ireland. The Court of Appeal upheld the decision in favour of Lee and highlighted the risk of arbitrary abuse that could arise if businesses were able to choose which services to provide based on religious beliefs.

The defendants also appealed the decision by the Court of Appeal, so the case was directed to the Supreme Court. This time, the decision was unanimously overturned. The Supreme Court reasoned that the bakery owners had not refused to produce the cake based on the applicant’s sexual orientation, but because they did not want to promote a message that they inherently disagreed with. Further, the Supreme Court held that, even if discrimination on the grounds of political opinion occurred, relevant anti-discrimination legislation should not be read as to require the bakery owners to produce a cake with a message with which they strongly disagreed. As such, the Supreme Court ultimately held in favour of the bakery owners.

DECISION OF THE ECtHR

Following this decision by the Supreme Court, an application was lodged with the European Court of Human Rights in 2019. Here, Lee argued that, by dismissing his claim, the Supreme Court—a public authority—had interfered with his rights under the Convention. Lee invoked the following rights incorporated in the ECHR: Article 9 (freedom of thought, conscience and religion), Article 10 (freedom of expression), and Article 14 (protection from discrimination).

In deciding Lee v. the United Kingdom, the ECtHR held that complaints before the Court are only admissible when arguments based upon the ECHR had been raised previously, either explicitly or in substance, before domestic authorities. This is known as the doctrine of exhaustion of domestic remedies. Following this line of reasoning, the Court also noted that the general principles of the ECtHR’s case-law on admissibility could be found in the case of Vučković and Others v. Serbia (application no. 17153/11).

In the case of Lee v. the United Kingdom, the ECtHR stated that Lee had chosen not to invoke his rights under the ECHR during the domestic proceedings, but had instead relied upon domestic law, in particular Northern Ireland anti-discrimination laws. Accordingly, Lee had not exhausted domestic remedies. Therefore, his claim was deemed inadmissible. Had Lee claimed Articles 8, 9, or 10 of the ECHR (either alone or alongside Article 14 of the ECHR), and lost this case at the Supreme Court, he would have exhausted domestic remedies and his case could have been heard by the ECtHR.

Although Lee argued that he had relied upon the ECHR’s rights and protections in substance, as the domestic anti-discrimination provisions were enacted to protect Articles 8, 9, 10, and 14 of the ECHR, the ECtHR rejected this contention. Similarly, the ECtHR also rejected Lee’s argument that the violations he alleged only materialised upon the handing down of the judgement by the Supreme Court.

The decision by the ECtHR to declare the case inadmissible has been subject to widespread criticism. Stonewall (the largest LGBTQI+ organisation in Europe) has described the decision as a “backwards step for equality… No business should discriminate against their customers, and no discriminatory behaviour should be held up by equality”. Lee’s solicitor has also called the decision “a missed opportunity” and stated that the legal team were considering whether to launch a new domestic challenge.

Mariam graduated with a First-Class Law Degree from Durham University in July 2021. She is currently a Legal and Advocacy Intern at the Consortium for Street Children and a volunteer for the Refugee Council. Mariam is also a member of the Amnesty International UK Youth Collective.

Linkedin