The case of Lee v Ashers Baking Co Ltd
Gareth Lee, a gay man who volunteered with QueerSpace, an organisation supporting the campaign in Northern Ireland to enable same sex marriage, placed an order with Ashers Baking Co Ltd for a cake to be iced with a coloured picture of cartoon-like characters “Bert and Ernie”, the QueerSpace logo, and the headline “Support Gay Marriage”.
Ashers Baking Co Ltd is run and owned by a Christian family, the McArthurs’. The McArthurs’ decided that they could not produce a cake with the QueerSpace slogan due to their Christian beliefs and so, should not fulfil the order.
Mr Lee brought proceedings for direct discrimination on grounds of sexual orientation and religious belief/political opinion. In both the first instance and on appeal to the Court of Appeal, it was held that not accepting Mr Lee’s order was direct discrimination on these grounds.
On further appeal, the Supreme Court overruled the Court of Appeal and held, amongst other things that a direct discrimination claim cannot arise out of treatment on grounds of the discriminator's religion or belief. Lady Hale said:
"The purpose of discrimination law is to protect a person (or a person or persons with whom he is associated) who has a protected characteristic from being treated less favourably because of that characteristic. The purpose is not to protect people without such a characteristic from being treated less favourably because of the protected characteristic of the alleged discriminator."
Mr Lee referred the case to the European Convention on Human Rights (ECHR) and on 6 January 2022 the ECHR in Lee v The United Kingdom, by a majority decision, said they would not reconsider the Supreme Court’s decision.
"The ECHR held the claim was "inadmissible" because at no point during the domestic proceedings, did Mr Lee expressly invoke his human rights."
The Christian Institute have welcomed the decision saying it is the right decision for freedom of speech. Whereas, representations from Stonewall, a LGBTQ charity, has said "this is a backwards step for equality".
This case highlights the importance, difficulty and sensitivity in balancing the rights of LGBTIQ communities and faith communities. This case also highlights the necessity to invoke human rights within domestic proceedings if they are to be later relied on in the ECHR.
To see the full judgment please see here:
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This article was prepared by Lauren Turner.