It may be surprising to learn that the continent without a First Amendment but with hate crime laws has shown more respect for free speech than many American courts.
Late last week the European Court of Human Rights sided with a pair of bakers from Northern Ireland in a dispute over whether they should be compelled to bake a cake supporting gay marriage, which they claimed would be against their religious beliefs.
The decision ended an eight-year legal battle by a gay activist determined to make the bakers complicit in his cause.
It’s unclear whether the activist Gareth Lee, would appeal the court’s ruling. But, according to Newsweek, he maintained that the decision was rendered on a “technicality,” and that his own freedom of expression, as would be expressed by a cake made by someone else, “must equally apply to lesbian, gay, bisexual, and trans people.”
The issue dates to 2014 when Lee wanted Ashers Baking Co., in Belfast, which is owned by Daniel and Amy McArthur, a husband, and wife who are devout Christians, to make a cake with “Sesame Street” characters Bert and Ernie, the phrase “Support Gay Marriage,” and the logo of his group activist group, QueerSpace.
As The Washington Times noted, Lee had paid for the cake, yet the McArthurs subsequently refused and refined his money, saying making the cake would violate their Christian beliefs.
Lee sued and lower courts agreed with him. Yet the United Kingdom’s Supreme Court ruled for the McArthurs, according to the Times, saying they should not be forced to craft a message with which they “profoundly disagreed.”
Lee appeals that decision to the European Court of Human Rights in France.
In its ruling, that court noted, “The supreme court found on the facts of the case that the applicant was not treated differently on account of his real or perceived sexual orientation, but rather that the refusal to supply the cake was because of the defendants’ religious objection to gay marriage.”
“What was principally at issue, therefore, was not the effect on the applicant’s private life or his freedom to hold or express his opinions or beliefs, but rather whether Ashers bakery was required to produce a cake expressing the applicant’s political support for gay marriage.”
In a press release explaining the ruling, the court noted that Lee had not raised any violation of his rights under the 1950 European Convention on Human Rights. In essence, he was trying to turn a domestic dispute, which was settled under British law when the UK Supreme Court sided with the McArthurs, into an international affair without the proper grounds for doing so.
“By relying solely on domestic law, the applicant had deprived the domestic courts of the opportunity to address any Convention issues raised, instead asking the Court to usurp the role of the domestic courts. Because he had failed to exhaust domestic remedies, the application was inadmissible.”
Jake Warner, legal counsel for the Alliance Defending Freedom, a U.S.-based public-interest law firm whose international unit helped defend the McArthurs, told the Times the European court’s ruling sharply differs from courts in Colorado and Washington state, which have overruled bakers, photographers, florists, and website designers who make the same argument the McArthurs and have the First Amendment to support their beliefs.
“No government should banish people from the marketplace based on their views,” Warner said in a statement.
“If a government can force artists to express a message they don’t support, it could force a Democratic speechwriter to write speeches promoting the Republican Party, or it could force an LGBT web designer to create a website criticizing same-sex weddings. That would wreck freedom for all Americans.”
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