Some years ago now the UK Supreme Court ruled that a Christian bakery company had not been guilty of sexual orientation discrimination when it declined to produce a cake for an activist designed to convey a political slogan in favour of same-sex marriage- see Lee v Ashers Baking Company Ltd [2018] UKSC 49 (10 Oct 2018) and my comment at the time. Now, after a long delay, an challenge to that decision by the customer, Mr Lee, has been finally dismissed by the European Court of Human Rights: see here where a copy of the judgment in Lee v United Kingdom (ECHR 4th section, Application no. 18860/19, 6 Jan 2022) can be downloaded. (A short summary is available on this page.)

(A preliminary comment on the nature of this challenge should be made. The details are spelled out clearly in an excellent comment on the decision by Prof Mark Hill QC, available here. This was not a formal “appeal”- the initial defendants, Ashers, were not parties to the case. Instead it was a claim by Mr Lee that the UK government should be held accountable for the decision of the UK Supreme Court not upholding his rights. Still, a finding against the UK would have cast into doubt the legal validity of the decision of the Supreme Court. This comment has been amended since first posted to take into account these matters.)

The grounds for refusing the challenge can be stated fairly shortly. Under the rules of the European Court of Human Rights, if that court is to hear an case based on a breach of the European Convention on Human Rights, the applicant must have raised specific convention rights in his or her claim at the local level. But unfortunately for Mr Lee, none of his claims explicitly raised Convention arguments; he had made his case entirely based on the domestic UK laws. As they said near the conclusion of their decision:

[77]…In a case such as the present, where the applicant is complaining that the domestic courts failed properly to balance his Convention rights against those of another private individual, who had expressly advanced his or her Convention rights throughout the domestic proceedings, it is axiomatic that the applicant’s Convention rights should also have been invoked expressly before the domestic courts…

This was the case even though the defendants in the case, the Ashers, had relied extensively on the Convention rights of freedom of religion and free speech. But the ECHR held that this did not overcome the problem that the applicant himself had not raised those issues.

The result is that the challenge has failed, although the ECHR has avoided making any clear comment on the substantive issues as to whether a business owner should be allowed to decline to make an artistic product which expresses a view which the owner fundamentally disagrees with. They do say at one point however:

[73]…What was principally at issue, therefore, was not the effect on the applicant’s private life or his freedom to hold or express his opinions or beliefs, but rather whether Ashers’ bakery was required to produce a cake expressing the applicant’s political support for gay marriage.

The decision of the UK Supreme Court in 2018 stands as good law, and in my view this is a good thing for free speech and religious freedom. It should perhaps be stressed that the cake concerned was not a wedding cake, it was simply a cake designed to celebrate and support a view on the political issue of recognition of same sex marriage. Lady Hale in the Supreme Court, as the ECHR noted here, pointed out that :

“ … People of all sexual orientations, gay, straight or bi-sexual, can and do support gay marriage. Support for gay marriage is not a proxy for any particular sexual orientation.”

Lady Hale, Ashers (2018) at [25], quoted by the ECHR in Lee v UK at [24].

The ECHR summed up the decision in this way:

36. In summarising the court’s position, Lady Hale noted that the defendants would have refused to supply this particular cake to anyone, whatever their personal characteristics. As such, there had been no discrimination on grounds of sexual orientation.

This remains as true today as when it was stated in 2018.