Expressive Commerce, Anti-Discrimination and Freedom of Association: Lessons from the Old Common Law

This paper examines the 'cake-bakers' cases by situating them in a larger framework governing expressive commercial activities. The paper closely examines the contours of identity-related “expression” in the market-place (by critically examining the reasoning of Lee v. Asher Baking Company), and its relation to freedom of religion. It then proceeds to analyze the potential clash with principles of anti-discrimination, and concludes with unpacking the overarching freedom of association individual (moral agents) enjoy. The paper re-introduces the common law doctrine of common callings as a way to conceptualize (and legally organize) the potential clash of the opposing claims, and reflects on the purchase of this doctrine at the constitutional levels in the UK, the US and other liberal democracies (as they confront less-liberal belief systems).