Great Britain’s Cake Off: ECtHR Edition

Camille Valdes Reyes

Vol. 40 Associate Editor

Since the 1980s, the European Court of Human Rights (“ECtHR” or “the Court”) has interpreted the European Convention of Human Rights (“ECHR” or “the Convention”) expansively so as to include LGBT rights.[1]  The Court has gone as far as reading discrimination on the grounds of “sexual orientation”[2] into ECHR’s Article 14 (Prohibition of Discrimination).[3]  Now, the Court could again have the opportunity to continue expanding upon LGBT rights if the recently decided case of Lee v. Ashers Baking Co. Ltd.[4] comes before them. The case pertains to a gay man, Mr. Lee, who ordered a cake with a “Support Gay Marriage” message on it and was subsequently refused due to the bakery’s owner’s religious belief.[5]  The United Kingdom Supreme Court found that there was no discrimination on the grounds of sexual orientation nor political opinion,[6] despite stating that denying a service due to their sexual orientation is “humiliating and an affront to human dignity.”[7]  Some find that this was the right decision for all parties involved as freedom of expression and conscience are the foundation of a democratic society from which we all, believers and non-believers, benefit.[8]  Although this may be true, it does not negate the fact that the situation gave rise to a claim of discrimination on the basis of sexual orientation and political opinion. So what could happen in the ECtHR? Mr. Lee can take the case and claim that the United Kingdom (“UK”) breached Article 14 of the ECHR. That is, he would have to argue that the UK owed him a positive obligation not to be discriminated against under Article 14 and that not finding in his favor amounted to a breach.  In reaching a decision, the Court will not doubt have to address whether the United Kingdom could have justified placing a restriction on the freedom to religion: in this case, making the baker complete the cake with the message. A restriction is by no means unlawful, as the ECHR itself recognizes that these can be placed on a person’s freedom of religion and expression when necessary in a democratic society to be able to protect the rights of others.[9]  An example of a case where such a restriction was upheld is S.A.S v. France.  The Court there found that a ban on wearing religious face covering did not amount to a violation of Article 9 because the State was justified in its attempts to meet the minimum requirements of life in society by protecting the rights of others.[10]  The State claimed that the wearing of face covering breached the rights of others to live in a space of socialization that makes living together easier.[11]  Mr. Lee could make a similar argument. He can argue that the UK should have placed a limitation on Ashers in order to protect the rights of others, in this case, the LGBT community, to live in a society where they will not be denied services due to their sexual orientation or political opinion.  Although this could be a persuasive argument, the Court will most likely defer to the UK’s judgment as it has previously done, despite making a finding of discrimination. In Eweida v. United Kingdom, the ECtHR looked at whether the UK had discriminated against an employee who was forced to perform same-sex civil partnerships ceremonies despite her objections due to her religious beliefs.[12]  The Court held that Ms. Ladele was discriminated against under Article 14 in conjunction with Article 9 when she was dismissed from her job but ruled that the UK Supreme Court had appropriately implemented a proportionality test[13] when deciding that she had to perform civil partnerships.  However, the Court decided that the UK Supreme Court’s decision allowing the limit on her freedom of religion was within the margin of appreciation[14] and found the UK not in breach of the Convention.  Mr. Lee will most likely have a similar outcome. Although the ECtHR will most likely find that the UK Supreme Court’s decision resulted in discrimination on the grounds of sexual orientation and political opinion against Mr. Lee, it is relevant to note that Eweida reflects the fact that the UK had previously enforced limitations on freedom of religion in favor of the LGBT community.  It did not matter that the civil partnership was easily obtainable elsewhere, therefore it should not matter that Mr. Lee was able to get a cake with the “Support Gay Marriage” elsewhere.  However, as the Court did in Eweida, this will not be the end of the discussion.  The Court will discuss if the restriction on Ashers would have pursued a legitimate aim, if compelling Ashers to write the message is reasonable, and what, if any, would be the effect on Ashers. The UK Supreme Court held that forcing the bakers to make a cake with a certain message is not a legitimate aim because Ashers did not object to baking a cake, they just objected to writing the message.  Should the Court find this convincing, which it probably will, it will decide that the UK’s unanimous decision is within the margin of appreciation due to a proper analysis between the two rights. Mr. Lee does have grounds to take his claims to the ECHR.  He could argue that freedom of religion should be limited because it is necessary to live in a society free from discrimination. However, he will have to run the risk of the Court showing deference to the UK in its understanding of a lack of legitimate aim and find that the decision is within the margin of appreciation.

[1] Henriette Jakobien Liesker, Caught in a Balancing Act, 4 Oslo L. Rev. 172, 173 (2017). [2] Liesker, supra note 1, at 174. [3] Council of Europe, European Convention Human Rights, https://www.echr.coe.int/Documents/Convention_ENG.pdf. [4] Lee v. Ashers Bakery Co. Ltd. [2018] UKSC 49, [2016] NICA 39 (appeal taken from N. Ir.), https://www.supremecourt.uk/cases/docs/uksc-2017-0020-judgment.pdf. [5] Ashers, supra note 4 at 4-5. [6] Ashers, supra note 4 at 10, 14. [7] Ashers, supra note 4 at 10. [8] Ashers, supra note 4 at 15; see also, Alasdair Henderson, Not just a piece of cake, UK Human Rights Blog (Nov. 7, 2016), https://ukhumanrightsblog.com/2016/11/07/not-just-a-piece-of-cake/. [9] ECHR, supra note 2, at Art. 9(2) & Art. 10(2) [10] S.A.S. v. France at 49, 55 (2014), http://hudoc.echr.coe.int/eng?i=001-145466. [11] S.A.S, supra note 10 [12] Eweida and Others v. the United Kingdom (2013), http://hudoc.echr.coe.int/eng?i=001-115881. [13] In deciding whether a restriction on a right is proportionate, the Court will generally look at 4 factors: (1) the impact on the right in question; (2) if there is legitimate aim for interference; (3) if the means used was reasonable;  (4) if it was proportional in general, i.e. the effects on the applicant and the context of the situation. See Steven Greer, The Margin of Appreciation: Interpretation and Discretion under the European Convention of Human Rights, 20 (2000); see generally, Eweida, supra note 12. [14] “[Margin of appreciation] refers to the room for manoeuvre [sic] the Strasbourg institutions are prepared to accord national authorities in fulfilling their obligations under the European Convention of Human Rights.” Greer, supra note 14 at 5. The views expressed in this post represent the views of the post’s author only.