The “gay cake” case dismissed by the European Court of Human Rights



You may recall the controversial ‘gay cake’ case (Lee v Ashers Baking Company Ltd) which was heard by the Supreme Court in 2018. Such was the case of the Christian bakery which refused to produce a cake with the message “support gay marriage”. for a gay customer. The European Court of Human Rights (ECHR) has now unanimously decided that it will not reconsider the Supreme Court’s ruling in the case.

Briefly, the facts of the case are as follows. Mr. Lee, a homosexual, ordered a cake from Ashers Bakers, to mark the end of anti-homophobic week. The bakery refused on the grounds that it was a Christian business. Mr Lee filed a complaint in Belfast County Court, claiming the refusal was direct discrimination based on sexual orientation and religious beliefs or political opinions. The bakery argued that they refused the order because they believed providing the cake would have furthered the political campaign for same-sex marriage, which was contrary to their Christian beliefs. They said they would have refused to provide a cake to a heterosexual or bisexual customer who requested the same cake and therefore the decision was not motivated by Mr. Lee’s sexual orientation.

In 2018, the Supreme Court ruled in favor of the bakery. The court held that less favorable treatment did not occur simply because it “had something to do with people’s sexual orientation”. There must be a greater connection than that. They found that the objection in this case was to the message and not the messenger. The refusal to provide the cake was not based on Mr. Lee’s sexual orientation or his perceived sexual orientation.

In its judgment, the Supreme Court considered the rights of bakery owners under the European Convention on Human Rights and the right to express an opinion. The court said “no one should be forced to hold or express a political opinion they do not believe in”.

Mr. Lee took his case to the ECHR, invoking various rights guaranteed by the European Convention on Human Rights. The ECHR has now declared this challenge to the Supreme Court’s decision inadmissible. Mr Lee did not invoke his Convention rights in his case in the UK courts and therefore did not exhaust domestic remedies.

This ECHR case puts an end to this long and controversial case. While the decision was hailed by many human rights activists as a “victory for free speech”, others said it was a “step backwards in the fight against equality.

In the meantime, there remains a degree of uncertainty around the practical issues that surround conflicting views in the workplace. There is often a tension between religious belief and LGBT rights. It is clear that employers should not discriminate against employees because they have certain religious beliefs. This becomes more complicated, however, when an employee with religious beliefs manifests those beliefs to the detriment of others with a protected characteristic. Having a policy prohibiting harassment, which would apply even if the harassment is the manifestation of a deep religious belief, would be legitimate, as long as it is proportionate and applied equally to all religious groups.

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