The Supreme Court’s decision in Masterpiece Cakeshop, Ltd. v. Colorado Civil Rights Commission has been roundly criticized for its failure to engage with difficult questions of constitutional law and for its absence of analytical clarity. While the Court reiterated that states have the authority to prohibit discrimination on the basis of sexual orientation, the Court also held that states must treat religious objectors’ claims with an ill-defined degree of neutrality and respect under the Free Exercise Clause. The combination of the majority opinion’s analytical shortcomings and Justice Kennedy’s departure from the bench has left the doctrinal landscape in a state of uncertainty, even as controversies between service providers and same-sex couples continue to arise.
But Masterpiece Cakeshop is not the only recent high court case that can provide insights into how to resolve tensions between religious liberty and anti- discrimination principles. In 2018, the U.K. Supreme Court decided Lee v. Ashers Baking Company Ltd., which similarly arose out of a shop’s refusal to provide a cake to a customer because of the owners’ religious objections to same- sex marriage. Like its American counterpart, the British Supreme Court reversed the decisions of lower tribunals and ruled in favor of the bakery. Yet despite these commonalities, there are important differences between the two cases. Most notably, the analysis in Ashers Baking Company improves upon the analysis in Masterpiece Cakeshop by drawing sharper distinctions between permissible and impermissible refusals to serve patrons, and by providing clearer indications that respect for freedoms of speech and religion need not imperil the viability of laws prohibiting discrimination. Ashers Baking Company thus has the potential to enrich the ongoing process of resolving the doctrinal uncertainty that persists under American constitutional law, and to highlight the benefits of transatlantic dialogue regarding questions of liberty and equality.