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).

Religious Objection, Compelled Speech, and Compelled Acts

The paper starts with an acknowledgment of the force of the argument, relied on by the UK Supreme Court in Lee v. Ashers Baking Company, that it would be incompatible with freedom of expression to compel a person to express a certain view, such as support for same sex marriage. It examines the rationale for this argument and asks whether or to what extent this rationale applies not only to expression but to acts more generally, such as the acts of selling a wedding cake to a gay couple or selling wedding cakes that will be used to celebrate same sex weddings.