Lee v. The United Kingdom: A Trend Toward Heightened Pleading Standards?  

By Clare Ryan

Introduction

In analogous cases across the Atlantic, cakeshop owners—and the customers they refused to serve—asked their nations’ highest courts: what is the proper balance between LGBTIQ[1] anti-discrimination protections and a business’ religious objections? In Masterpiece Cakeshop v. Colorado Civil Rights Commission and Lee v. Ashers Baking Co., the United States Supreme Court and the Supreme Court of the United Kingdom, respectively, issued fairly narrow rulings. Both cases involved commercial bakers who refused to serve cakes that they believed promoted same-sex marriage, a position that ran contrary to their religious convictions. The U.S. Supreme Court held that the state anti-discrimination law had been applied in a manner that demonstrated “impermissible hostility toward . . . sincere religious beliefs.” The U.K. Supreme Court held that bakers could not be compelled to decorate cakes with messages with which they disagreed (namely, “support gay marriage”). In both cases, the bakers’ refusals of service were allowed to stand, albeit for different reasons (detailed analyses of these cases are available here and here).

Although the cakeshop cases differed along several important axes, this analysis will focus on one key difference: the Lee case did not end in London, but rather in Strasbourg. Lee v. the United Kingdom serves as an important reminder of the European Court of Human Rights’ (hereinafter ‘the Court’) delicate position when balancing competing rights under the European Convention of Human Rights (herein after ‘the Convention’). This post will argue that the Court’s admissibility decision in Lee was consistent with a trend toward higher pleading standards and narrow rulings on LGBTIQ rights. The post will also examine how this decision, although framed in the language of subsidiarity and deference, can be seen as a show of power from the Strasbourg Court.

Facts

Gareth Lee was living in Belfast in 2014. To show his support for marriage equality in Northern Ireland, he commissioned a cake from a local bakery. The cake was to include an image of popular children’s television characters Bert and Ernie with the words “Support Gay Marriage” and the logo of “QueerSpace,” an LGBTIQ rights organization with which Mr. Lee was affiliated. Ashers Baking Co., which took the order, was a business run by the McArthur family. After realizing the nature of the cake’s design, Ashers contacted Mr. Lee, apologized, and informed him that they could not make his cake. They explained that they were a Christian bakery and should not have taken his order (¶7-9).

Mr. Lee then made a compliant to the Equality Commission of Northern Ireland, which supported him in bringing a claim against Ashers Baking Co. and the McArthurs for violating several domestic anti-discrimination laws (¶10). His claims rested on The Equality Act (Sexual Orientation) Regulations (Northern Ireland) 2006 and The Fair Employment and Treatment (Northern Ireland) Order 1998. Mr. Lee prevailed before the County Court, which found that Ashers had discriminated against him on the basis of his sexual orientation and political opinion (¶13-14). The Court of Appeal affirmed on similar grounds (¶22).

Lady Hale authored the leading judgment for the Supreme Court of the United Kingdom reversing the ruling of the lower courts. There were no separate opinions. The Supreme Court concluded that in order to respect the defendant’s Article 9 and 10 Convention rights, the relevant domestic provisions could not be read to prohibit businesses from refusing to support a particular political message. The Supreme Court furthermore found that there were no grounds for finding that the cakeshop had discriminated against Mr. Lee on the basis of his sexual orientation, but rather that they would have refused to make a cake that contained the message “support gay marriage,” regardless who commissioned it (¶36).

The Court’s Decision

The Strasbourg Court’s decision is brief—its assessment runs a mere eleven paragraphs and there are no separate opinions. But this short admissibility decision contains several crucial glimpses into the future of litigation before the Court.

The Court began its analysis by establishing the governing admissibility principle: “the specific Convention complaint presented before [the Court] must have been aired, either explicitly or in substance, before the national courts.” The panel explain that to consider an application in which Convention rights had not been pled at the domestic level “would be contrary to the subsidiary character of the Convention machinery” (¶68). In essence, the Court explained, the requirement to exhaust domestic remedies means that the applicant must have—at least in substance—presented Convention rights in the domestic sphere. In assessing whether domestic remedies had been exhausted, the Court asked if Mr. Lee had pled Convention rights in the domestic courts. It is uncontested that he did not cite to European Convention articles in his domestic pleadings. However, there are three possible ways in which the Court could have found that Convention rights were aired at the domestic level.

First, the applicant explained that although he relied on specific provisions of domestic law, those provisions were domestic enactments of Convention rights. By pleading analogous domestic rights, he was pleading Convention rights in substance. Second, he argued that at the domestic level, Ashers Bakery and the McArthurs had raised Convention rights in their response to Mr. Lee’s claims, which the U.K. Supreme Court addressed in its judgment. The Supreme Court had held that the defendant’s Convention rights to freedom of religion and freedom of expression (Articles 9 and 10) would be infringed if the domestic legislation was not interpreted to permit such a refusal of service. Mr. Lee contended that he should, therefore, be able to claim that the domestic court restricted his Convention rights by misbalancing the Convention rights of the defendants. By necessity, this facet of Lee’s argument could not arise until after the highest domestic court judgment interpretating domestic law in light of the defendant’s Convention rights. Third, Mr. Lee argued that his right to protection against discrimination in domestic law could be understood, in substance, to overlap with his rights under Article 14 of the Convention (¶56-57).

The Court rejected each of these possibilities, concluding that: ‘the domestic courts were tasked only with balancing the applicant’s very specific rights under the 2006 Regulations and the 1998 Order against the McArthurs’ rights under Articles 9 and 10 of the Convention. At no point were they tasked with balancing his Convention rights against those of the McArthurs’ (¶75).  The Court continued that: ‘[i]n choosing not to rely on his Convention rights, the applicant deprived the domestic courts of the opportunity to consider both the applicability of Article 14 to his case and the substantive merits of the Convention complaints on which he now relies. Instead, he now invites the Court to usurp the role of the domestic courts by addressing these issues itself’ (¶ 77).    Regarding the claim that the applicant had pled Article 14 in substance, the Court concluded that: ‘while the protection against discrimination in the 2006 Regulations and the 1998 Order is free‑standing, Article 14 is ancillary in nature: there can be no room for its application unless the facts at issue fall within the ambit of one or more substantive Convention rights’ (¶ 72). The Fourth Section, therefore, dismissed the application for failure to exhaust domestic remedies.

Analysis

Despite its brevity, the Lee decision raises several questions currently facing the Strasbourg Court, both regarding its broader role as a supranational rights-protecting institution and as a protector of LGBTIQ rights more specifically.

First, does the Lee decision signal a heightened pleading standard in Strasbourg? Much has been written about Strasbourg’s move to raise admissibility standards in recent years—both through jurisprudential rules and changes to the formal admissibility requirements. If the exhaustion standard set in Lee were applied uniformly to all applicants, it would put greater pressure on domestic lawyers to raise Convention rights in anticipation that their case might make its way to Strasbourg. The capacity to plead Convention rights varies across the legal communities of the Member States. In the Grand Chamber judgment upon which Lee relies, the Court recognized that circumstances vary, and emphasized ‘the need to apply the exhaustion rule with some degree of flexibility and without excessive formalism. (Vučković and others v Serbia, ¶76).

Lee might be a harbinger of heightened pleading requirements. That said, there are specific features of the case which might have made the Court more inclined to be more stringent in its admissibility decision than it would be in other cases. It is unlikely that the Court would have been as strict about the domestic pleadings in a country that does not have as robust of a human rights bar as the United Kingdom. Lee was a comparably well-resourced legal actor, and his lawyers could have been expected to raise Convention arguments before the domestic courts. In jurisdictions where Convention rights are rarely pled, or in circumstances where doing so would not be apparent to applicants, I suspect the Court would be more open to finding that the applicant substantively raised the Convention right in domestic courts. Professor Çali’s analysis of Strasbourg’s ‘variable geometry,’ vividly captures how the Court tailors judgments to the vastly different legal and political landscapes across its Member States; an approach that would likely be deployed in these circumstances.

Additionally, the substance of the underlying claim matters. The narrow domestic court judgments in both the United States and United Kingdom suggest that religious objections to LGBTIQ anti-discrimination laws raise issues that courts are reluctant to address. This may be especially true in Strasbourg, which has consistently applied an incremental approach to LGBTIQ rights (although as my co-author Laurence Helfer and I have written about elsewhere, this approach may have increasingly limited viability). The Strasbourg Court’s tendency toward narrow rulings is not helped by Article 14’s “ancillary” nature, which has produced a rather anemic equality jurisprudence across a variety of legal contexts. It is possible that the Court would be more willing to find that Convention rights were substantively plead in a Member State that ratified Protocol 12, which guarantees equality as a free-standing right.

The Court’s reticence to address the underlying rights-balancing question is evident in its justification for dismissing the application: ‘this balancing exercise is a matter of great import and sensitivity to both LGBTIQ communities and to faith communities…This is particularly so in Northern Ireland, where there is a large and strong faith community, where the LGBTIQ community has endured a history of considerable discrimination and intimidation, and where conflict between the rights of these two communities has long been a feature of public debate’ (¶75).  If Lee were merely a case about pleading standards, then political salience of the substantive rights would have little relevance, but it instead plays a key role in the Court’s decision.

Finally, although the Court’s admissibility decision is framed in terms of subsidiarity and deference to domestic courts, I question how deferential it actually is. The decision puts greater pressure on litigants to raise Convention rights at the domestic level, rather than relying on domestic legislation alone. Although a litigant could argue that they had raised the substance of Convention rights in the domestic suit, this would be a gamble given the Strasbourg Court’s restrictive reading of what constitutes the ‘substance’ of Convention rights in Lee. Savvy lawyers, in anticipation of applications to Strasbourg, will frame their client’s claims in terms of Convention rights from the start to avoid the risk of dismissal on exhaustion grounds. This strategy could redirect domestic courts from engaging in the interpretation and application of domestic statutes toward a greater emphasis on Convention rights at the domestic level. Consequently, the Strasbourg Court will be able to assert more power over the content of rights at the domestic level. The Court expects domestic judges to implement Convention rights as interpreted by Strasbourg. If domestic judgments are framed in terms of Convention rights, the Court has more authority to find that the domestic courts have misinterpreted Convention obligations than they would to contradict a domestic court’s interpretation of its own domestic legislation, even when that interpretation is framed with Convention rights in mind (as was the case in Lee).

Critics of the Lee decision have referred to it as a ‘missed opportunity’ for the Court to protect LGBTIQ rights. The prevalence of third-party intervenors in the case suggests that many advocates on both sides of this issue saw it as a chance for Strasbourg to make a more definitive ruling on the proper balance between LGBTIQ equality and religious objections in the commercial sphere (¶58-67). However, to call this a ‘missed opportunity’ disregards the fact that the Court made a purposeful choice in rejecting the application. It is implausible that the Court would have expressly disagreed with the outcome of a U.K. Supreme Court judgment regarding such a controversial topic; especially a unanimous judgment authored by the highly respected Lady Hale. If the Court had addressed the merits of the case, it is much more likely that they would have found no violation of Mr. Lee’s Convention rights. In refusing to engage in rights balancing, therefore, the Court also avoided giving more weight to religious objections to domestic anti-discrimination laws.

Avoidance and narrow rulings offer courts greater control over their dockets and allow them to select the specific case whose facts and timing are best suited to the court’s needs. In the meantime, however, it gives little guidance to other courts or lawmakers seeking to implement the court’s judgment or anticipate what might be required in future cases. Avoidance is also a time-limited option, as exemplified by the case currently before the U.S. Supreme Court challenging the same anti-discrimination provisions that were at issue in the 2017 Masterpiece Cakeshop judgment. Undoubtedly, cases like Lee will be before the Strasbourg Court again soon—in a posture that is more difficult to dismiss.

[1] While many versions of this acronym are used, the European Court of Human Rights appears to favor LGBTIQ, so that is what is used throughout this comment.