‘Gay cake’ challenge thrown out by European Court of Human Rights – UK Supreme Court win for Christian bakers stands

• An attempt to effectively overturn the UK Supreme Court ruling in the Ashers Baking Co. case has been rejected.
• Gareth Lee, who sued the family bakery in 2014 for refusing to ice a campaign message on a cake for a gay rights event, has today lost his appeal to the European Court of Human Rights in Strasbourg.
• Lee’s lawyers claimed the UK had failed to safeguard human rights. But the Strasbourg court decided his claim was inadmissible.

The Christian Institute has welcomed today’s decision by the European Court of Human Rights in the famous ‘gay cake’ case. The court accepted the argument of The Christian Institute’s lawyers that the appeal should be ruled inadmissible.

In 2018 the UK Supreme Court rejected the case brought by Gareth Lee that he was discriminated against by Ashers Baking Co. and its owners Colin and Karen McArthur, by declining to ice the words ‘Support Gay Marriage’ on a cake for a gay rights event. The outcome was widely regarded as a victory for free speech.

Judges at the UK’s highest court unanimously (5-0) found:

• The issue was about the message, not the messenger.
• Equality law does not compel people to say something with which they profoundly disagree.
• There was no discrimination on grounds of sexual orientation.
• There was no discrimination on grounds of religious belief or political opinion.
• The objection was to being required to promote the message on the cake.
• The less favourable treatment was afforded to the message, not to the man.

The latest case was brought against the United Kingdom Government, not against Ashers or the McArthurs. Lee’s lawyers attempted to argue that the European Convention imposed a positive obligation on the UK Supreme Court to ensure that Ashers Baking Co., and Mr and Mrs McArthur personally, should be required to provide him with a product that carried a political message to which the McArthurs sincerely objected.

Although neither Ashers nor The Christian Institute were parties to the Strasbourg case, both made written interventions through their lawyers. The Court, in ruling in favour of the UK Government today, adopted the arguments advanced by the interveners. (See Notes for Editors below.)

Simon Calvert, spokesman for The Christian Institute, which has supported the McArthurs since 2014, said:

“This is the right result. The UK Supreme Court engaged at length with the human rights arguments in this case and upheld the McArthurs’ rights to freedom of expression and religion. It was disappointing to see another attempt to undermine those rights, so it is a relief that the attempt has failed. I’m surprised anyone would want to overturn a ruling that protects gay business owners from being forced to promote views they don’t share, just as much as it protects Christian business owners.

“The ruling in October 2018 by five of the country’s most distinguished and experienced judges was welcomed by lawyers, commentators and free speech experts from across the spectrum. They all knew of the implications for freedom of speech and religion, had the decision gone against Ashers. This could have included a Muslim printer being forced to print cartoons of Mohammed, or a lesbian-owned bakery being forced to make a cake describing gay marriage as an ‘abomination’.

“This is good news for free speech, good news for Christians, and good news for the McArthurs.”

ENDS

Notes for Editors:

Extracts (with paragraph numbers) from The Christian Institute’s submission to the European Court of Human Rights by David Scoffield QC, Sarah Crowther QC and Professor Christopher McCrudden:

• “8. The principal argument of the Applicant before this Court is that the United Kingdom (by reason of the judgment of the Supreme Court) is in breach of its positive obligations under the Convention (Articles 8, 9, 10, and 14) to ensure that the Ashers Baking Company Limited, and Mr and Mrs McArthur personally, should be required to provide him with a product that carried a political message to which the McArthurs objected, based on their sincerely held religious beliefs.”
• “10. As will be seen from the judgments of the various national courts that have decided this case, the courts have never considered any such claim by the Applicant. At no point during this long-drawn out litigation did the Applicant explicitly or implicitly, directly or indirectly, make any such argument. Instead, the Applicant relied solely on what the Supreme Court ultimately decided was an incorrect interpretation of domestic anti-discrimination law, without any suggestion that a failure by the courts to find in his favour would, or even could, result in a breach of the Convention by the United Kingdom. Equally, the Applicant did not raise this argument when Ashers/the McArthurs argued that, even if unlawful discrimination was established, they were protected by Articles 9 and 10 of the Convention. Indeed, the Applicant’s principal argument was that neither Article 9, nor Article 10, applied in this case.”
• “16. The gist of the Applicant’s claim is that the Supreme Court’s decision, particularly in failing to uphold his allegation that he had been discriminated against on the grounds of sexual orientation, resulted in the United Kingdom being in breach of its positive obligations under Article 8, 9, 10 and 14. The positive obligations asserted, if they existed, would require the United Kingdom to oblige Ashers/the McArthurs to have produced a product (in this case, an iced cake) that carried a slogan (in this case, ‘Support Gay Marriage’) to which the directors of the company objected, based on their sincerely-held religious objection to changes in the law in Northern Ireland that would permit same-sex marriages.”
• “34. The Intervener invites the Court to find this application inadmissible on the basis that the Applicant’s failure to use domestic remedies has deprived the United Kingdom of any opportunity to prevent any breach of rights.”
• “35. The Applicant has failed to demonstrate that there was any failure on the part of the United Kingdom in its positive obligation to promote convention rights as between private individuals. The Court’s approach to this case should be one of a wide margin of appreciation, only intervening in the event of manifestly unreasonable, arbitrary decision-making or an approach fundamentally inconsistent with Convention principles.”
• “36. Ashers’ Convention rights under Articles 9 and 10 required protection by the United Kingdom; and the Supreme Court’s interpretation of the domestic legislation demonstrated a proportionate approach to those rights. Any other approach would have negated the McArthurs’ and Ashers’ right not to have to express the Applicant’s political views.”

Further background:

• The case started in 2014 when Ashers Baking Company declined an order by a gay rights activist asking for a £36.50 cake featuring the campaign slogan, ‘Support Gay Marriage’.
• The cake was for a campaign event calling for same-sex marriage to be introduced in Northern Ireland. The customer, Mr Gareth Lee, also wanted the cake to feature the logo of a Belfast-based campaign group called QueerSpace.
• The bakery refused to make the cake because it carried a message contrary to the firmly-held Christian beliefs of the owners, the McArthur family.
• After four and half years the case reached the UK’s Supreme Court, which ruled:

• “The objection was not to Mr Lee because he, or anyone with whom he associated, held a political opinion supporting gay marriage. The objection was to being required to promote the message on the cake. The less favourable treatment was afforded to the message not to the man. …The evidence was that they were quite prepared to serve him in other ways. The situation is not comparable to people being refused jobs, accommodation or business simply because of their religious faith. It is more akin to a Christian printing business being required to print leaflets promoting an atheist message.” [Para. 47]
• “…obliging a person to manifest a belief which he does not hold has been held to be a limitation on his article 9(1) rights.” [Para. 50]
• “The freedom not to be obliged to hold or to manifest beliefs that one does not hold is also protected by article 10 of the Convention. …The right to freedom of expression does not in terms include the right not to express an opinion but it has long been held that it does. …Citing, among other cases, both Kokkinakis and Buscarini, Lord Dyson held that the principle applied as much to political opinions as it did to religious belief: ‘Nobody should be forced to have or express a political opinion in which he does not believe’ (para 42).” [Para. 52]

• Following the ruling, it was revealed that the legal bill for the case had reached nearly £500,000. But the McArthurs did not seek their legal costs after winning the case.