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An LGBT activist's complaint against a Christian bakery was rejected by the Strasbourg Court

Published: 10.03.2022

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· The European Court of Human Rights has dismissed an LGBT activist's complaint against a Christian bakery for refusing to make a cake expressing support for gay marriages.

· In 2014, a UK bakery refused to bake a cake ordered by an activist of an LGBT organisation.

· Courts in two more instances found the refusal of the bakery to be discriminatory, but the Supreme Court ruled that the owners refused the service not because of the purchaser's sexual preferences but because of the message that the cake was supposed to promote.

· The LGBT activist who placed the order filed a complaint with the European Court of Human Rights, pointing out that the Supreme Court's ruling violated his right to privacy, freedom of conscience and religion, and the right to non-discrimination.

· The ECtHR rejected the complaint, pointing out that the applicant had not, for unclear reasons, raised such allegations in the domestic courts, and should have done so.

"In the justification of the decision, we find positive signals that when it comes to the freedom of conscience of entrepreneurs, the Tribunal is ready to follow a direction similar to the one of the American Supreme Court, which in 2018 issued a judgment in a very similar case, directly recognising that the baker has the right to refuse making of the cake expressing support for the demands of the LGBT community for religious reasons”, emphasised Weronika Przebierała, Director of the International Law Centre of the Ordo Iuris Institute.

In 2014, Gareth Lee, an activist of a British LGBT organisation, ordered a cake from the local bakery "Ashers", which was to include, among others, the QueerSpace logo and the slogan "Support Gay Marriage". The next day the bakery called him to say that they would not complete the order as they were a Christian company and returned his money. The owners of the bakery were the couple Daniel and Amy McArthur, Evangelical Christians, who referred to the Bible - that marriage was only a union between a man and a woman.

Gareth Lee placed an order at another bakery that seamlessly baked the cake with the decorations indicated. Regardless of it, the man submitted a complaint to the Equality Commission. It concerned alleged discrimination on the basis of his sexual orientation and political views. The case gained media coverage, and the LGBT lobby accused the McArthurs of contempt for homosexuals. However, they explained that their decision was not "out of hatred towards anyone, but out of love for God."

With the help of the Commission, Gareth Lee filed a lawsuit against the bakery owners. The Court ruled that the failure to perform the contract constituted a manifestation of direct discrimination against the plaintiff's sexual orientation. The McArthurs appealed, but the appeal was dismissed. In 2018, however, the Supreme Court of Great Britain quashed the court's judgment, stating that there had been no discrimination in this case because the bakery owners had not refused to serve the applicant because of his homosexual inclinations, but because they did not want to support the introduction of same-sex marriages.

In 2019, Lee filed a complaint with the European Court of Human Rights, accusing the Supreme Court of violating his right to privacy, religious freedom and non-discrimination. Ultimately, the Tribunal in Strasbourg dismissed the complaint on formal grounds, i.e. due to the fact that the domestic appeal procedure was not exhausted. The ECtHR noted that at no stage of the proceedings had the applicant invoked his rights under the European Convention on Human Rights but did so only in his application to the Court. Meanwhile, the exhaustion of the appeal path can only be discussed when the domestic courts have the opportunity to consider the application of the Convention in a given case. The Court also noted that the merits of the case lay not so much in the impact of the bakery's decisions on the applicant's private life or freedom of speech, but rather in the question of whether that bakery had a legal obligation to bake the cake expressing Gareth Lee's political support for same-sex marriages.

“The ECtHR's Lee case deserves attention for two reasons. Firstly, it is a step towards strengthening the protection of the freedom of conscience and religion of entrepreneurs who want to implement the values they believe not only in their private lives but also in their business activities. The British Supreme Court, and then the Strasbourg Court itself, have rightly pointed out that refusing to provide a service to a homosexual person does not automatically amount to discrimination. The bakery owners not only had served homosexuals before, but even employed them. However, as evangelicals, they did not want to get involved in a public campaign for same-sex marriages. Secondly, it is noteworthy that the applicant himself, in this case, admitted that support for the institutionalisation of same-sex relationships is the expression of specific political views and not – contrary to frequent narratives by LGBT communities – some objective moral imperative to which everyone must submit. The wording of this decision slightly weakens its formal character because the Tribunal did not dismiss Gareth Lee's complaint on substantive grounds, but due to the fact that the domestic appeal procedure was not exhausted”, noted Weronika Przebierała.

The case of Lee v. the United Kingdom, ECtHR decision of December 7, 2021.

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