This presentation aims to contribute to the debates on the hard cases of balancing freedom of religion and enforcing antidiscrimination law. It will focus on Lee v. Ashers Baking Company where the UK Supreme Court held there is no discrimination in the access to goods and services where a bakery refuses to supply a cake iced with the message “support gay marriage”. It will criticise the ruling focusing on the need to enforce antidiscrimination law in the access to goods and services by focusing on the social meaning of the need to enforce antidiscrimination law, the message that it sends. It will respond to the forced speech argument by comparing it with other cases of artistic expression. In all these cases, it is important to focus on the quality of the person refused the service or the good.
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.
A distinctive feature of modern state public law is how it produces, rather than is preceded by, the category demarcated as “religion.” This paper explores how secular legal reasoning, at a broad and abstract level, regulates Islamic and Jewish traditions by limiting them within the three nodes of individual belief, a divinely ordained legal code, and public threat, which may be termed the “secularization triangle.” The secularization triangle signifies not the separation of state from religion; rather, quite to the contrary, the secularization triangle clarifies how state law construes (or rather misconstrues) traditions as “religions.” Instead of accommodating traditions, states control religions. The article’s case study is the recent controversy surrounding circumcision in Germany.