Same-sex marriage is not a piece of cake

Gay-marriage-cake case declared inadmissible
January 6, 2022
Habitual residence of the Spouse
February 14, 2022

The decision n. 004 2022 EHCR (App. 1880/2019) of the European Court of Human Rights declared inadmissible the application Lee vs the United Kingdom regarding the refusal by a Christian-run bakery to make a cake with the words “Support Gay Marriage” and the QueerSpace logo on it, which the applicant had ordered and paid for.

The Court’s belief, in a nutshell, is that there were no grounds for the application because the bakery owners had not refused to serve the applicant because he was gay, but rather because they objected to being required to promote a message that they profoundly disagreed with.

Quite funnily, nearly the same case (or nearly the same… cake) had been raised before the US Supreme Court some years ago, in a lawsuit whereby the Supreme Court eventually sided with a Colorado baker in a case that put anti-discrimination laws up against freedom of speech and freedom of religious expression. Docket 16-111 Colo. App. Dec 5, 2017 Jun 4, 2018 7-2 Kennedy OT 2017

The American Court did not resolve the larger issue of religious freedom that was central to the case, but ruled in favour of the baker nevertheless: some analysts suggested that the court left open the possibility of a different ruling in the future, depending on the specifics of cases.

The same thing could be said, I believe, about the European decision. As every lawyer knows, a decision of inadmissibility is not equivalent to a rejection on the merits of the claim: the door seems to have been left ajar purposely.

Actually I cannot figure why any customer in the world would fancy to order to a super-christian activist the making of a marriage cake with the words and logo “Support Gay Marriage” on it, which may result in insulting to the feelings of the poor Christian baker, for the same reason why none would order the same cake to a well known muslim activist of the local Mosque. But that’s not the legal issue, I presume.

This is not the place for full examination of the American and European Constitutional Rights, for which I have no competence, however a reflection can be made. The balance between the protection of minorities and the feelings of the majority (especially in a multiracial society) is always a difficult one to find.

But one thing we can take for granted: when you pressure on the side of the scale protecting the minorities, the majorities may object in various ways. And viceversa.

Marco Calabrese is an International Family Law Attorney and Collaborative Law Attorney shortlisted by the US and UK Embassies in Rome. Owner of the Family Law Italy, a boutique law firm, located in Rome, Italy. +39 3289112809 – +39 6 8075014

info@familylawitaly.com – www.familylawitaly.com

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