The "gay cake" case thrown out by the European Court of Human Rights

You may recall the controversial "gay cake" case (Lee v Ashers Baking Company Ltd) that was heard by the Supreme Court in 2018. This is the case of the Christian bakery who 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 would not reconsider the Supreme Court judgment on this case.

In brief, the facts of the case are as follows. Mr Lee, a gay man, ordered a cake from Ashers Bakers, to mark the end of Aniti-homophobic week. The bakery refused on the grounds that it was a Christian business. Mr Lee brought a claim in the Belfast County Court claiming that the refusal was direct discrimination on the grounds of sexual orientation and religious belief or political opinion. The bakery argued that they had refused the order because they believed that providing the cake would have promoted the political campaign for same-sex marriage, which was against their Christian beliefs. They said they would have refused to supply a cake to a heterosexual or bisexual customer who requested the same cake and therefore the decision was not because of Mr Lee’s sexual orientation.

In 2018, the Supreme Court found in favour of the bakery. The court held that less favourable treatment does not occur just because it “has something to do with the sexual orientation of people”. There has to be a greater connection than that. They found the objection in this case was to the message and not the messenger. The refusal to provide the cake was not on the ground of Mr Lee’s sexual orientation or his perceived sexual orientation.

In its judgment, the Supreme Court considered the bakery owners’ rights under the European Convention of Human Rights and the right to express an opinion. The court commented that ‘nobody should be forced to have or express a political opinion in which he does not believe.’

Mr Lee took his case to the ECHR, relying on various rights under the European Convention on Human Rights. The ECHR has now declared this challenge to the Supreme Court decision to be inadmissible. Mr Lee had not invoked his rights under the Convention in his case under the UK courts and so had not exhausted domestic remedies.

This ECHR case brings to an end this long running and controversial case. Whilst this decision has been welcomed by many human rights campaigners as a "victory for freedom of expression," others have voiced that it is a "backwards step in combating equality."

In the meantime, there remains a degree of uncertainty around practical issues which surround conflicting views in the workplace. Often there is a tension between religious belief and LGBT rights. Employers clearly must not discriminate against employees because they hold certain religious beliefs. This is complicated however, when an employee holding 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 a manifestation of deeply held religious belief would be legitimate, as long as it is proportionate and is applied equally to all religious groups.