The Antinomies of Antidiscrimination Law and Religious Freedom

At the end of 2017, the highest courts in the U.K and U.S. heard arguments in two remarkably similar cases—Masterpiece Cakeshop and Ashers Baking Company—involving antidiscrimination claims against bakers who refused, on the grounds of their religious beliefs, to create customized wedding cakes supporting and celebrating same-sex marriage. Against the backdrop of English and American as well as ECHR religious freedom jurisprudence, this paper examines the arguments raised in the two cases and explores the antinomies as well as convergences in the reasoning in the two cases. In particular, it asks what these cases tell us about current understandings of the subject, object and justification of the right to religious freedom and its embeddedness in the problem-space of modern secular power.