London, UK

A top European court declined Thursday to rule in a high-profile discrimination case centered on an activist's request to have a cake decorated with the Sesame Street characters Bert and Ernie and the words “Support Gay Marriage".

The European Court of Human Rights said the case was inadmissible because activist Gareth Lee had failed to “exhaust domestic remedies” in his case against a Northern Ireland bakery. 

Northern Ireland Gareth Lee

Gay rights activist Gareth Lee, centre, leaves Laganside court, Northern Ireland, Thursday, on 26th March, 2015. PICTURE: AP Photo/Peter Morrison/File photo.

It was the latest ruling in a long-running legal battle that began in 2014 when Ashers Baking Co refused to make the cake Lee wanted. 

The owners argued they were happy to bake goods for anyone but would not put messages on their products at odds with their Christian beliefs.

Lee said he was frustrated the case was thrown out on what he called “a technicality” and said that freedom of expression “must equally apply to lesbian, gay, bisexual and trans people.”

He originally ordered the cake to support a campaign to allow same-sex marriage in Northern Ireland. The campaign succeeded when Britain’s Parliament stepped in to bring the region into line with the rest of the country. Two women who tied the knot in February, 2020, became the first gay couple to wed in Northern Ireland.

Britain’s Supreme Court ruled in 2018 that the bakery's refusal to make the cake Lee ordered did not amount to discrimination, reversing a lower court’s ruling.

Lee then took his case to the Strasbourg, France-based human rights court, arguing that the UK Supreme Court decision breached the European Convention on Human Rights.

In a written ruling, the rights court said it could not rule because Lee had not raised the convention in his UK court actions.

“Because he had failed to exhaust domestic remedies, the application was inadmissible," the Court of Human Rights said. 

LGBTQ support group the Rainbow Project called the ruling disappointing.

“When a commercial business is providing services to the public, they cannot discriminate against their customers or clients on any grounds protected by equality law," John O’Doherty, the group's director, said.

He said the 2018 UK Supreme Court ruling created legal uncertainty throughout the country. 

“Unfortunately, with today’s decision, that uncertainty will remain,” he said.

The Christian Institute, which had backed the legal fight of the McArthur family that runs Ashers Baking Co, welcomed the ruling, which a spokesman called “good news for free speech, good news for Christians, and good news for the McArthurs".

“The UK Supreme Court engaged at length with the human rights arguments in this case and upheld the McArthurs’ rights to freedom of expression and religion," spokesman Simon Calvert said.

Peter Lynas, director of the Evangelical Alliance in the UK, said in a statement that "everyone’s human rights have been affirmed and everyone is better off after today's ruling which protects us all from compelled speech"

He said the case was "about freedom of conscience, speech and belief, and whether someone could be forced to create a message they profoundly disagreed with".

"Today’s ruling protects everyone from compelled speech. The Supreme Court found no discrimination on grounds of sexual orientation, religious belief or political opinion. The issue was always the message rather than the messenger. In ruling the case inadmissible, the ECHR has effectively backed the Supreme Court ruling.”

- With DAVID ADAMS/Sight