It’s the start of Lesbian, gay, bisexual, transgender, (LGBT+) history month and we will be posting an interesting fact every week to honour it!
This week’s fact links with a well-known ‘gay cake’ case…
The case is that of Mr Lee and the United Kingdom. The background and outcome is as follows:
In 2014, Mr Lee ordered a cake from Asher’s Bakery for a gay-activist event. He requested the cake had an image of Sesame Street’s characters Bert and Ernie, the logo of QueerSpace, and the slogan ‘Support Gay Marriage’ on it.
Mr Lee paid the bakery for the cake upfront but the next day, they called him to say they would not fulfil his order because it was a Christian business. They apologised to him and refunded his money.
Mr Lee brought a claim against the bakery and its owners for breach of statutory duty regarding the provision of goods, facilities and services.
The bakery and its owners responded, stating they had invoked their rights under Article 9 (freedom of thought, conscience and religion), and Article 10 (freedom of expression) of the European Convention of Human Rights (ECHR).
The County Court found that the failure to fulfil the order had constituted direct discrimination on the grounds of sexual orientation and religious beliefs or political opinions, in breach of the Fair Employment and Treatment (Northern Ireland) Order 1998 and the Equality Act (Sexual Orientation) Regulations (Northern Ireland) 2006. They accepted that the bakery owners’ Article 9 rights were engaged, but held that they were not entitled to manifest their religious beliefs in the commercial domain, if this would oppose the rights of others. The Court also considered that Article 10 ECHR was not engaged because the bakery had not been required to support, promote or endorse Mr Lee’s view.
On appeal, the European Court of Human Rights upheld the decision, noting the possibility for arbitrary abuse if businesses were free to choose what services to provide to the gay community on the basis of religious beliefs.
The Supreme Court overturned the decision. It held that there had been no less favourable treatment on the grounds of religious belief, since the bakery owners had not refused to serve the applicant because he was gay, but instead because they objected to being required to promote a message with which they profoundly disagreed.
What was primarily at issue was not the effect on Mr Lee’s private life or freedom to hold or express his opinions or beliefs, but whether the bakery was required to produce a cake expressing his political support for gay marriage.
The European Court of Human Right’s majority decision recognises that the Human Rights Act 1998 gives claimants the right to invoke their rights directly before domestic Courts and obliges those Courts, so far as it is possible to do so, to read and interpret legislation in a way which is compatible with those rights.
This weeks’ fact is that…
same sex marriage was only legalised in Northern Ireland in January 2020!
