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Lawyers representing a man from Northern Ireland who sued a bakery for refusing to make a cake with pro-gay marriage message are going to Europe to challenge a supreme court ruling that its evangelical Christian owners had a right to refuse to bake it.
Belfast human rights law firm Phoenix Law confirmed on Thursday it had been instructed by Gareth Lee to take his case to the European court of human rights (ECHR).
Lee was told by Ashers bakery in 2014 that it would not make a cake with the message “Support Gay Marriage” on it because it was contrary to the owners’ religious beliefs.
Four years later the supreme court reversed earlier decisions at Belfast county court and court of appeal that Ashers had discriminated against Lee on the grounds of him being gay.
Five judges on the supreme court, which in 2018 sat for the first time in Northern Ireland, found that the bakery did not refuse Lee’s order because of his sexual orientation. They ruled therefore that there was no discrimination on those grounds.
But Lee’s legal team are now arguing in the ECHR that the supreme court ruling should be overturned because baking the cake did not imply “the bakery supporting (expressly or implicitly) the message of the cake”.
The lawyers contend that no reasonable person would equate producing the cake for an individual private customer with the bakery supporting the pro-gay marriage message on it.
Phoenix Law will argue in Europe that the cake, which was made by another baker subsequently, “was not displayed in the shop window. It was for personal use by Lee and became his private property upon payment and collection.”
The firm will also argue that “there is no such a thing as a ‘Christian business’” and therefore should not be given legal recognition by a court.
On the latest twist in the saga, Lee said: “I’d fight for the rights of business owners to be able to hold their own religious beliefs. I have my own beliefs. But that’s not what my case has ever been about.
“This is about limited companies being somehow able to pick and choose which customers they will serve. It’s such a dangerous precedent.”
Lee’s lawyer Ciaran Moynagh added: “We’re concerned the ruling in this case allows any company, its shareholders or owners to hold religious or political views and those views trump the rights of its customers. The supreme court ruling blurred the line, created legal uncertainty for all of us in Northern Ireland and the ECHR is the appropriate place to clarify this issue.”
One of the rulings of the 2018 supreme court decision was that the owners of Ashers bakery had the right to refuse supplying a cake with a message that was contrary to their beliefs.
“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,” the five judges concluded.
When the controversy first flared up, Northern Ireland was still the only part of the UK where same-sex marriage was not recognised in law. This remains the case until the end of October when, if devolved government is not returned to the region, Westminster will impose legislation that will make it legal.
Until now the largest party in the currently deadlocked Northern Ireland assembly – the Democratic Unionists – were the main force blocking marriage equality.
Despite the DUP’s “king-making” position at Westminster where its MPs shore up the minority Conservative government, they were unable to block a cross-party motion in the Commons this summer that will result in same-sex marriage legislation being imposed on Northern Ireland in just over two months.
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