Cakes and Communication: A Trans‐Atlantic Conversation Between the U.S. and U.K. Supreme Courts on the Tension Between Anti‐Discrimination Law and the Freedoms of Religion and Speech

Abstract

In 2018, anti-discrimination law clashed with the freedoms of religion and speech at the tops of two major common law systems on both sides of the Atlantic Ocean. On June 4, the United States Supreme Court decided Masterpiece Cakeshop, Ltd. v. Colorado Civil Rights Commission, a case that involved a Christian baker who refused to bake a cake for a same-sex wedding. Several months later, on October 10, the United Kingdom Supreme Court decided Lee v. Ashers Baking Company, Ltd., a case that involved a Christian family business that refused to bake a cake that promoted same-sex marriage. A key legal issue in both cases was whether the government, in the interest of furthering anti-discrimination law, may compel speech against one’s religious beliefs. Also, permeating the two cases were especially rich issues of human communication. Taking a comparative approach, and with an eye toward some of the communication-related matters involved in the cases, this paper examines Masterpiece Cakeshop, Ltd. v. Colorado Civil Rights Commission and Lee v. Ashers Baking Company, Ltd., ultimately proposing that court systems consider, at a minimum, several factors in cases in which anti-discrimination law clashes with the freedoms of religion and speech in the sale of baked goods like cakes. The paper urges courts to consider at least the following factors: (1) the specificity of the message, (2) the likelihood that the baker will be identified as the creator of the baked good and thus potentially as a sender of the message, and (3) whether the baker knows the situation in which the baked good will be used. The paper unfolds by providing background on the cases, reviewing the various legal opinions, and then offering analysis of key communication issues presented.