Gareth Lee’s legal team to consider fresh domestic case
DUP leader Sir Jeffrey Donaldson has described a “welcome victory for freedom of expression” after the European Court of Human Rights (ECHR) ruled a case taken against Ashers Bakery as “inadmissible”.
Gareth Lee, who attempted to order a cake with a pro-gay marriage slogan from Ashers bakery in Belfast, has said he “very much hoped for a different outcome” following the ECHR verdict.
It brings an end to the seven-year Ashers ‘gay cake’ saga.
The ruling in Lee v the United Kingdom was delivered on Thursday morning in Strasbourg.
The ECHR said the applicants had failed to raise convention issues with “domestic courts”.
Ciaran Moynagh of Phoenix Law, who represented Mr Lee, said they will now consider whether a fresh domestic case is progressed.
Mr Donaldson said the decision “reinforces that the refusal to fulfil the order was because of the message and not in any way related to the customer.”
"No-one should be refused service because of their race, gender, religion or sexual orientation,” he added.
"To do so would be wrong and should not be supported by anyone. The Supreme Court found that there was no such discrimination in this case.
"This has been a very long process and my thoughts are with the McArthur family. Their dignity and courage throughout this process has been an example to us all."
In a statement following the ruling, Mr Lee said he was most frustrated that the “core issues” were not fairly analysed and adjudicated upon “because of a technicality”.
“None of us should be expected to have to figure out the beliefs of a company's owners before going into their shop or paying for their services,” he stated.
“I am grateful to my legal team and to everyone who, over many years, has given me help and support. I believe we all want to live in an open, fair and tolerant society.
“This case has put a spotlight on the challenges faced by LGBT+ in Northern Ireland. I will continue to support all law that protects and gives rights to all people equally.”
Mr Lee, who is a member of the LGBT advocacy group QueerSpace, had attempted to order the £36.50 cake in May 2014 featuring Sesame Street puppets Bert and Ernie for a private function marking International Day Against Homophobia from Ashers bakery.
It was requested the cake included the words “Support Gay Marriage”.
He was later refused as the request was at odds with the beliefs of the family-run bakery, whose owners are Christian.
Mr Lee sued on the basis that he had been discriminated against on the grounds of his sexual orientation and political beliefs.
He won his case initially in the county court and then at the Northern Ireland Court of Appeal.
However, Ashers insisted it was the cake’s message, not the customer, it had objected to.
After protracted legal proceedings, Ashers eventually won an appeal in the UK’s highest court, where the company’s actions were ruled not to be discriminatory by five Supreme Court justices.
The case was then referred to the ECHR, where it was argued that the Supreme Court “failed to give appropriate weight” to him under the European Convention on Human Rights.
The ECHR case differs from the previous ones in that it is being taken against the UK, as a member state of the European Court, and not against the owners of Ashers.
Mr Moynagh stated the issue’s raised by his client at the ECHR “remain unaddressed”.
“Today’s decision means that the law here in NI remains in a state of uncertainty as to how persons rights can be protected,” he continued.
“Owners of limited companies have long taken advantage of being able to separate themselves financially from their business.
“We continue to believe they should also keep their political and religious views separate. When a general service is offered, it must be offered without favour or prejudice.”
Welcoming the ruling, Simon Calvert from The Christian Institute, which has supported the McArthurs, said it was “the right result”.
“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,” he stated.
“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.”
Deputy Director of CAJ, Daniel Holder, said the ECHR missed an opportunity to clarify its case law on sexual orientation and discrimination in the private sector, “particularly when it is said to relate to the message rather than the customer”.
“We believe this leaves an ambiguity in protections whereby individuals and organisations across Europe actively campaigning on gay rights would be particularly vulnerable to a commercial business refusing to provide services like printing posters, leaflets, setting up websites, etc, through claiming an exemption to non-discrimination laws on the basis of ‘it’s not you it’s your message’,” he added.
UK director of the Evangelical Alliance Peter Lynas, said “everyone” is better off after the ECHR ruling as it protects against compelled speech.
“This case was about freedom of conscience, speech and belief, and whether someone could be forced to create a message they profoundly disagreed with,” he said. “Today’s ruling protects everyone from compelled speech.
“The Supreme Court found no discrimination on grounds of sexual orientation, religious belief or political opinion.
“The issue was always the message rather than the messenger. In ruling the case inadmissible, the ECHR has effectively backed the Supreme Court ruling.”