Europe’s high court backs bakers in Bert and Ernie gay-marriage cake battle

A husband-and-wife team of Northern Ireland bakers had the right to refuse a pro-gay marriage cake order on conscience grounds, the European Court of Human Rights ruled Thursday.

American advocates for Christian creative business owners said the European ruling sharply contrasts with several actions by U.S. states designed to “compel speech.”

Europe’s highest court reviewing human rights issues heard the case involving activist Gareth Lee, who had sued Ashers Baking Co., in Belfast, for refusing in 2014 to create a cake featuring “Sesame Street” characters Bert and Ernie, the slogan “Support Gay Marriage,” and the logo of Mr. Lee’s organization, QueerSpace.

Mr. Lee said he had paid in advance for the cake, with the bakery calling the next day to cancel the order and refund his payment. Owners Daniel and Amy McArthur told Mr. Lee their principles in running what they called a “Christian business” would not allow them to complete the order. 

In its finding, the European Court said Mr. Lee had not claimed rights under the 1950 European Convention on Human Rights when suing in local courts, making his case “inadmissible” before the Strasbourg, France-based panel. 

Two courts in Northern Ireland sided with Mr. Lee before the Supreme Court of the United Kingdom found in favor of the McArthurs. That court said the bakers would have refused any customer requesting such a message, ruling out Mr. Lee’s discrimination claim. Further, the court ruled the bakers should not be required “to express a message with which they profoundly disagreed,” the European court noted.

Alliance Defending Freedom, a public-interest law firm whose ADF International unit was involved in the Asher’s Baking case, said the European Court of Human Rights decision contrasts with actions in Colorado and Washington state, among other U.S. jurisdictions, where bakers, photographers, floral arrangers and website designers are being “compelled” to create products to support events to which they object on conscience grounds.

ADF said Lorie Smith of 303 Creative, a Denver-area website firm, has asked the U.S. Supreme Court to review a 10th Circuit Court of Appeals ruling affirming Colorado’s mandate that Ms. Smith must create websites for same-sex weddings, regardless of her religious convictions about doing such work.

“No government should banish people from the marketplace based on their views,” said Jake Warner, ADF legal counsel, in an email 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. We are hopeful that the U.S. Supreme Court will soon take up Lorie Smith’s case and protect artistic freedom stateside.”

Correction: An earlier version of this report misstated the position of the European Court of Human Rights. It is independent of the European Union.