Let them eat cake?

In January 2022, a gay rights activist lost a lengthy discrimination battle with a Christian baker when the European Court of Human Rights ruled his case as inadmissible. Is this a victory for freedom of expression and religion, or justification for discrimination?

First: background to the case and the UK court rulings

Gareth Lee argued that bakers had discriminated against him on the grounds of his sexual orientation, by refusing to make a cake with the slogan ‘Support Gay Marriage’. Initial UK court decisions found in favour of Mr Lee, but in October 2018, the UK Supreme Court overturned these earlier decisions, ruling that the bakery, run by Christians, were not obliged to make the cake with the requested message.

The judges in the Supreme Court said:

‘It is deeply humiliating, and an affront to human dignity, to deny someone a service because of that person’s race, gender, disability, sexual orientation or any of the other protected personal characteristics, but that is not what happened in this case’

‘Freedom of expression, as guaranteed by article 10 of the European convention on human rights, includes the right “not to express an opinion which one does not hold. This court has held that nobody should be forced to have or express a political opinion in which he does not believe’.

‘The bakers could not refuse to supply their goods to Mr Lee because he was a gay man or supported gay marriage, but that is quite different from obliging them to supply a cake iced with a message with which they profoundly disagreed.’

Second: the 2022 ruling of the European Court of Human Rights

As a consequence of the UK Supreme Court ruling, Gareth Lee took his case to the European Court of Human Rights. This is a court founded in the aftermath of World War Two, to uphold human rights, democracy and the rule of law in Europe. In January 2022, judges in this court dismissed the case, ruling that it was inadmissible because Mr Lee had not fully exhausted remedies in the UK courts.

How have people reacted?

Back in October 2018, in response to the UK Supreme Court ruling:

The decision of the UK Supreme Court was met with a mixed response.

Stonewall said: ‘This is a backward step for equality which needs to be urgently addressed. The decision that Ashers bakery were not discriminatory in the so-called ‘gay cake’ row is very concerning for anyone who cares about equality.’

But the human rights campaigner and prominent LGBT rights advocate Peter Tatchell said:

‘This verdict is a victory for freedom of expression. As well as meaning that Ashers cannot be legally forced to aid the promotion of same-sex marriage, it also means that gay bakers cannot be compelled by law to decorate cakes with anti-gay marriage slogans.’

‘Although I profoundly disagree with Ashers’ opposition to marriage equality, in a free society neither they nor anyone else should be forced to facilitate a political idea that they oppose. The ruling does not permit anyone to discriminate against LGBT people. Such discrimination rightly remains unlawful.’

Dr Martin Treacy, an associate university lecturer said ‘I applaud the supreme court ruling that the Ashers bakery had the right to refuse to bake a cake with a message in support of gay marriage. As a strong supporter of gay rights, I hold a very different view from the Christian family that runs Ashers, but it is surely right that they are not compelled by law to produce a message they profoundly disagree with. They didn’t refuse to serve a gay man as such (they would have happily sold him a cake without this message). This ruling equally protects a gay baker who – if this ruling had gone the other way – could have been forced to produce a cake with an offensive homophobic message on it’.

However Steven Greer, Professor of Human Rights at the University of Bristol Law School said: ‘The core difficulty with this judgment lies in the assumption that being required to convey the opinions of others, with which the deliverer disagrees, is a breach of the latter’s right to freedom of belief and/or expression.’

‘Yet, if this were the case, it would also be true of post office workers delivering mail, and printers printing material, containing points of view with which they disagree… Allowing certain providers of goods and services but not others to choose which otherwise lawful messages they are prepared to deliver, as the supreme court has, effectively enables them to have their cake and eat it.’

In January 2022, in response to the EHRC ruling:

Mr Lee said that he was frustrated that his case had been dismissed ‘because of a technicality’.

Stonewall expressed disappointment with the ruling, saying that ‘this leaves the door open for legal uncertainty across the UK’.

However, while Peter Tatchell expressed sympathy with Mr Lee, he stood by his original remarks, pointing out that ‘I cannot endorse legal compulsion to require them [the bakers] to promote a message with which they profoundly disagree’.

What do you think?