10.6092/issn.2531-6133/16545
In 2018, anti-discrimination law clashed with the freedoms of religion and speech at the tops of two major common law systems on both sides of the Atlantic Ocean. On June 4, the United States Supreme Court decided Masterpiece Cakeshop, Ltd. v. Colorado Civil Rights Commission, a case that involved a Christian baker who refused to bake a cake for a same-sex wedding. Several months later, on October 10, the United Kingdom Supreme Court decided Lee v. Ashers Baking Company, Ltd., a case that involved a Christian family business that refused to bake a cake that promoted same-sex marriage. A key legal issue in both cases was whether the government, in the interest of furthering anti-discrimination law, may compel speech against one’s religious beliefs. Also, permeating the two cases were especially rich issues of human communication. Taking a comparative approach, and with an eye toward some of the communication-related matters involved in the cases, this paper examines Masterpiece Cakeshop, Ltd. v. Colorado Civil Rights Commission and Lee v. Ashers Baking Company, Ltd., ultimately proposing that court systems consider, at a minimum, several factors in cases in which anti-discrimination law clashes with the freedoms of religion and speech in the sale of baked goods like cakes. The paper urges courts to consider at least the following factors: (1) the specificity of the message, (2) the likelihood that the baker will be identified as the creator of the baked good and thus potentially as a sender of the message, and (3) whether the baker knows the situation in which the baked good will be used. The paper unfolds by providing background on the cases, reviewing the various legal opinions, and then offering analysis of key communication issues presented.
application/pdf
2531-6133
16545
2
en
Carlo A. Pedrioli
https://creativecommons.org/licenses/by/4.0
University of Bologna Law Review
Same-Sex Marriage
Cakes and Communication: A Trans‐Atlantic Conversation Between the U.S. and U.K. Supreme Courts on the Tension Between Anti‐Discrimination Law and the Freedoms of Religion and Speech
Text.Serial.Journal
https://bolognalawreview.unibo.it/
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Articles & Essays
2023-03-06
2023-03-05
2022-11-22
2023-03-06
183-204
UBLR
Carlo A. Pedrioli
2022
10.6092/issn.2531-6133/16545
183
Southern University
2531-6133
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Same-Sex Marriage
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Cakes and Communication: A Trans‐Atlantic Conversation Between the U.S. and U.K. Supreme Courts on the Tension Between Anti‐Discrimination Law and the Freedoms of Religion and Speech
https://bolognalawreview.unibo.it/article/download/16545/15687
7
llVOLUME 7                                   llISSUE 2                       ARTICLES & ESSAYS



                           UNIVERSITY OF BOLOGNA LAW REVIEW
                          https://doi.org/10.6092/issn.2531‐6133/16545

             Received: 15 Feb. 2022 | Accepted: 26 July 2022 | Published: 6 March 2023

                                                  A

   Cakes and Communication: A Trans‐Atlantic Conversation
   Between the U.S. and U.K. Supreme Courts on the Tension
       Between Anti‐Discrimination Law and the Freedoms of
                                  Religion and Speech

                                        CARLO A. PEDRIOLI
Carlo A. Pedrioli is Professor of Law at Southern University (U.S.A.). He holds a J.D. from the
University of the Pacific (U.S.A.) and a Ph.D. in Communication from the University of Utah
(U.S.A.). He is also a member of the State Bar of California (U.S.A.).
The author thanks David Capper and an anonymous reviewer for feedback on prior drafts of this
paper. On June 3, 2019, and June 25, 2021, the author presented earlier versions of this paper at
the Free Speech/Media Law Discussion Forum, which Pázmány Péter Catholic University,
Budapest, Hungary, hosted in 2019, and which Johannes Gutenberg University, Mainz, Germany,
hosted in 2021. For conversation after the Discussion Forum presentations, the author thanks the
participants of the Forum.

 @ carlo.pedrioli@sulc.edu
  ID
       0000-0001-5027-6054


                                             ABSTRACT

In 2018, anti-discrimination law clashed with the freedoms of religion and speech at the tops of
two major common law systems on both sides of the Atlantic Ocean. On June 4, the United States
Supreme Court decided Masterpiece Cakeshop, Ltd. v. Colorado Civil Rights Commission, a case that
involved a Christian baker who refused to bake a cake for a same-sex wedding. Several months
later, on October 10, the United Kingdom Supreme Court decided Lee v. Ashers Baking Company,
Ltd., a case that involved a Christian family business that refused to bake a cake that promoted
same-sex marriage. A key legal issue in both cases was whether the government, in the interest
of furthering anti-discrimination law, may compel speech against one’s religious beliefs. Also,
permeating the two cases were especially rich issues of human communication.
Taking a comparative approach, and with an eye toward some of the communication-related
matters involved in the cases, this paper examines Masterpiece Cakeshop, Ltd. v. Colorado Civil Rights
Commission and Lee v. Ashers Baking Company, Ltd., ultimately proposing that court systems
consider, at a minimum, several factors in cases in which anti-discrimination law clashes with the
freedoms of religion and speech in the sale of baked goods like cakes. The paper urges courts to
consider at least the following factors: (1) the specificity of the message, (2) the likelihood that
the baker will be identified as the creator of the baked good and thus potentially as a sender of
the message, and (3) whether the baker knows the situation in which the baked good will be used.
The paper unfolds by providing background on the cases, reviewing the various legal opinions,
and then offering analysis of key communication issues presented.



                                                 183
    A TRANS-ATLANTIC CONVERSATION ON THE TENSION BETWEEN ANTI-DISCRIMINATION LAW
                       AND THE FREEDOMS OF RELIGION AND SPEECH


                                                KEYWORDS
    Anti-Discrimination Law; Sexual Orientation; Freedom of Religion; Freedom of Speech; Same-Sex Marriage


                                           TABLE OF CONTENTS

Introduction . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .     .   .   .   .   .   .   .   .   .   .   .   .   .   .   184
1. Background on the Two Cases . . . . . . . . . . . . . . . . . . .         .   .   .   .   .   .   .   .   .   .   .   .   .   .   186
2. The Opinion of the U.S. Supreme Court and Associated Opinions             .   .   .   .   .   .   .   .   .   .   .   .   .   .   188
3. The Opinion of the U.K. Supreme Court . . . . . . . . . . . . . .         .   .   .   .   .   .   .   .   .   .   .   .   .   .   195
4. Analysis of Key Communication Issues in the Cases . . . . . . . .         .   .   .   .   .   .   .   .   .   .   .   .   .   .   199
Conclusion . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .     .   .   .   .   .   .   .   .   .   .   .   .   .   .   204




        INTRODUCTION

In 2018, anti-discrimination law clashed with the freedoms of religion and speech at the
tops of two major common law systems on both sides of the Atlantic Ocean. On June 4,
the United States Supreme Court decided Masterpiece Cakeshop, Ltd. v. Colorado Civil Rights
Commission, a case that involved a Christian baker who refused to bake a cake for a same-
sex wedding.1 Several months later, on October 10, the United Kingdom Supreme Court
decided Lee v. Ashers Baking Company, Ltd., a case that involved a Christian family business
that refused to bake a cake that promoted same-sex marriage.2 A key legal issue in both
cases was whether the government, in the interest of furthering anti-discrimination law,
may compel speech against one’s religious beliefs.
            Permeating the two cases were especially rich issues of human communication.
For instance, do both a cake with a specific message and a generic cake convey messages?
Who would be behind sending the messages? Who would constitute the audience? Does
context matter?
            Conversation between and among courts in different jurisdictions around the
world has led to constitutional cross-fertilization.3 Through persuasive authority from
another jurisdiction, a court in a given jurisdiction may gain insight into a similar
problem elsewhere, whether the receiving court eventually adopts the same approach or
not.4 In Lee v. Ashers Baking Company, Ltd., Lady Brenda Hale, the President of the U.K.
Supreme Court, specifically referenced and engaged the opinions of the Justices of the
1
  See Masterpiece Cakeshop, Ltd. v. Colorado Civil Rights Commission, 138 S. Ct. 1719 (2018).
2
  See Lee v. Ashers Baking Company, Ltd. [2018] UKSC 49 (N. Ir.). Ashers Baking citations are to the paragraphs
  in the U.K. Supreme Court’s opinion.
3
  See Anne-Marie Slaughter, A Global Community of Courts, 44 HARV. INT’L L.J. 191, 194-95 (2003).
4
  Id. at 199-202.


                                                     184
2023]                           UNIVERSITY OF BOLOGNA LAW REVIEW                                    [Vol. 7:2


U.S. Supreme Court in Masterpiece Cakeshop, Ltd. v. Colorado Civil Rights Commission.5
Beyond the United States and the United Kingdom, similar matters regarding
anti-discrimination law and speech against one’s religious beliefs can arise in various
jurisdictions around the world, which opens up the possibility for additional
cross-fertilization.6
          Moreover, a supranational court was invited to enter the discourse. After the
U.K. Supreme Court’s decision in Ashers Baking, Gareth Lee, who originally had
complained against the Ashers Baking Company, made an application to the European
Court of Human Rights [hereinafter E.Ct.H.R.] based on rights under the European
Convention on Human Rights [hereinafter E.C.H.R.].7 Although the E.Ct.H.R. found the
case inadmissible because Lee had not expressly raised his Convention rights in the
domestic courts,8 the E.Ct.H.R., in addition to referring to the U.K. Supreme Court case,
also referred to the U.S. Supreme Court’s Masterpiece Cakeshop decision.9
          Taking a comparative approach, and with an eye toward some of the
communication-related matters involved in the cases, this paper examines Masterpiece
Cakeshop, Ltd. v. Colorado Civil Rights Commission and Lee v. Ashers Baking Company, Ltd.,
ultimately proposing that court systems consider, at a minimum, several factors in cases
in which anti-discrimination law clashes with the freedoms of religion and speech in the
sale of baked goods like cakes. The paper will urge courts to consider at least the
following factors: (1) the specificity of the message, (2) the likelihood that the baker will
be identified as the creator of the baked good and thus potentially as a sender of the
message, and (3) whether the baker knows the situation in which the baked good will be
used. The paper will unfold by providing background on the cases, reviewing the various
legal opinions, and then offering analysis of key communication issues presented.




5
  See Ashers Baking, UKSC 49 at [59]-[62].
6
  See, e.g., Liam Elphick, Sexual Orientation and “Gay Wedding Cake” Cases Under Australian Anti-Discrimination
  Legislation: A Fuller Approach to Religious Exemptions, 38 ADELAIDE L. REV. 149 (2017).
7
  See, e.g., Ashers “Gay Cake” Row Referred to European Court, BBC NEWS (Aug.                      15, 2019),
  https://www.bbc.co.uk/news/uk-northern-ireland-49350891.
8
  See Lee v. United Kingdom, App. No. 18860/19, ¶ 77 (Jan. 6, 2022), https://hudoc.echr.coe.int/fre#%
  22itemid%22:[%22001-202151%22]. For context, see Eimear Flanagan, Ashers “Gay Cake” Case: European Court
  Rules Case Inadmissible, BBC NEWS (Jan. 6, 2022), https://www.bbc.com/news/uk-northern-ireland-59882444.
9
  See Lee, App. No. 18860/19 at ¶¶ 38-42, 75.


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                        AND THE FREEDOMS OF RELIGION AND SPEECH


        1. BACKGROUND ON THE TWO CASES

In Masterpiece Cakeshop, Ltd. v. Colorado Civil Rights Commission, Jack Phillips operated a
bakery in Lakewood, Colorado, which is near Denver.10 Phillips, who was Christian, had
operated the bakery for twenty-four years.11 With his work, the baker attempted to
honor God.12 In line with his religious convictions, Phillips believed that God intended
for marriage to be an exclusively heterosexual institution.13
           During the summer of 2012, Charlie Craig and Dave Mullins, a gay couple, went to
Phillips’ shop and told him that they wanted to order a wedding cake for their wedding.14
They offered no particular design for the cake.15 At that time, same-sex marriage was not
yet legal in Colorado, so the couple intended to marry in Massachusetts, where same-sex
marriage was legal,16 and then return to Colorado.17 The baker informed the two men
that he did not make cakes for same-sex weddings, although he would make the two men
goods such as cakes for showers and birthdays.18
           One day later, Craig’s mother phoned Phillips to inquire why Phillips had refused
to make the cake for her son and his fiancé.19 Phillips explained his objection based on
religious grounds; his understanding was that same-sex marriage contradicted biblical
teachings.20
           Craig and Mullins filed a civil rights complaint via the administrative system in
Colorado.21 After several steps, the Colorado Civil Rights Commission agreed that Phillips
had violated the right of Craig and Mullins to be free from discrimination based on sexual
orientation, a right that the Colorado Anti-Discrimination Act provided.22 The Colorado
Court of Appeal affirmed the decision, and the Colorado Supreme Court declined to hear
the case.23



10
   See Masterpiece Cakeshop, Ltd. v. Colorado Civil Rights Commission, 138 S. Ct. 1724 (2018).
11
   Id.
12
   Id.
13
   Id.
14
   Id.
15
   Id.
16
   For a discussion of the case that legalized same-sex marriage in Massachusetts, see Carlo A. Pedrioli,
   Goodridge v. Department of Public Health , Same-Sex Marriage, and the Massachusetts Supreme Judicial Court
   as Critical Social Movement Ally, 54 LOY. L.A. L. REV. 515 (2021).
17
   See Masterpiece Cakeshop, 138 S. Ct. at 1724.
18
   Id.
19
   Id.
20
   Id.
21
   Id. at 1725.
22
   Id. at 1725-26.
23
   Id. at 1726-27.


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Of interest, in a 2017 matter not before the Supreme Court in Masterpiece Cakeshop, Phillips,
citing his religious beliefs, refused to make a birthday cake for a transgender individual.24
The proposed cake would have had a blue exterior and a pink interior.25 In 2021, the state
court that heard a lawsuit which the potential customer had brought found that Phillips
had violated Colorado’s anti-discrimination statute.26 Phillips appealed.27
          Thousands of miles away, on the other side of the Atlantic Ocean, in Lee v. Ashers
Baking Company, Ltd., Daniel and Amy McArthur, a married heterosexual couple, operated
a bakery in Belfast, Northern Ireland.28 The McArthurs were Christian and believed that
sexual expression, if biblically-informed, should take place only in a heterosexual
marriage.29       They also accepted the idea that biblically-informed marriage was
exclusively heterosexual.30 Although they did not specifically advertise their beliefs,
they named their business Ashers based on Genesis 49:20, which, in one translation,
states, “‘Bread from Asher shall be rich and he shall yield royal dainties’”.31
          Gareth Lee, who was gay, worked with QueerSpace, an entity that advocated for
the queer community in Belfast, including the community’s interest in promoting civil
marriage for its members.32 To a QueerSpace event in May 2014, Lee opted to bring a
cake.33 From Ashers, he ordered a cake with Bert and Ernie from the U.S. public television
children’s show Sesame Street; the desired cake would have had the message “‘Support Gay
Marriage’” and the QueerSpace logo on it.34               Although the bakery took the order, and
Lee then paid for it, the bakery later called Lee and indicated that, based on the religious
beliefs of the McArthurs, the bakery could not fulfill the order.35 The bakery refunded
the charge to Lee, who then successfully ordered the cake from another bakery.36 Staff
members at Ashers were not aware of Lee’s sexual orientation, and Lee was not aware


24
   A Colorado Baker Is Fined for Refusing to Make a Cake for a Transgender Woman, NAT’L PUB. RADIO (June 17,
   2021, 10:46 AM ET), https://www.npr.org/2021/06/17/1007594289/baker-fined-for-refusing-to-make-cake-
   for-transgender-woman.
25
   Id.
26
   Id.
27
   Colorado Baker Fighting Ruling Over Gender Transition Cake, NBC NEWS (Oct. 6, 2022, 9:58 AM CDT),
   https://www.nbcnews.com/nbc-out/out-news/colorado-baker-fighting-rulinggender-transition-cake-
   rcna51018.
28
   See Lee v. Ashers Baking Company, Ltd. [2018] UKSC 49, [9], [11] (N. Ir.).
29
   Id. at [9].
30
   Id.
31
   Id. Other translations use produce, food, etc. instead of bread. See generally BIBLEAGATEWAY,
   https://www.biblegateway.com/ (allowing for comparison of numerous translations of the Bible) (last
   visited Oct. 29, 2022).
32
   See Ashers Baking, UKSC 49 at [10].
33
   Id.
34
   Id. at [12].
35
   Id.
36
   Id. at [12], [14].


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     A TRANS-ATLANTIC CONVERSATION ON THE TENSION BETWEEN ANTI-DISCRIMINATION LAW
                        AND THE FREEDOMS OF RELIGION AND SPEECH


of the McArthurs’ religious beliefs, including those on marriage.37 In the past, Lee had
bought cakes at Ashers, but the staff members did not know him personally.38
           Lee complained about the refusal of the McArthurs to bake his cake to the Equality
Commission of Northern Ireland, which supported him in subsequent legal action.39 Both
the trial court and appellate court found unlawful discrimination by the McArthurs.40




        2. THE OPINION OF THE U.S. SUPREME COURT AND ASSOCIATED
        OPINIONS

Justice Anthony Kennedy wrote the opinion for the U.S. Supreme Court in Masterpiece
Cakeshop, Ltd. v. Colorado Civil Rights Commission.41 He admitted that the case involved
“difficult questions as to the proper reconciliation of at least two principles”.42 Kennedy
recognized that U.S. society “ha[d] come to the recognition that gay persons and gay
couples [could] not be treated as social outcasts or as inferior in dignity and worth”.43 At
the same time, the Justice noted that objections to same-sex marriage based on religion
or other beliefs were legally protected.44 Despite such objections, a business owner
generally would not be allowed to refuse goods and services to someone in a protected
group.45 However, the government would not be able to compel a minster who held an
objection to same-sex marriage to perform same-sex marriages.46
           Kennedy acknowledged Phillips’ argument that, if the baker were forced to make
the cake, Colorado would be forcing him “to make an expressive statement, a wedding
endorsement in his own voice and of his own creation”.47 As Phillips saw it, this situation
would have implicated both speech and religious belief.48



37
   Id. at [11].
38
   Id.
39
   Id. at [14].
40
   Id. at [15]-[16].
41
   See Masterpiece Cakeshop, Ltd. v. Colorado Civil Rights Commission, 138 S. Ct. 1719, 1723 (2018). Kennedy’s
   opinion received criticism for its narrow ruling, which failed to give substantial guidance in cases in which
   anti-discrimination law clashed with freedom of religion and speech. See, e.g., Chad Flanders & Sean Oliveira,
   An Incomplete Masterpiece, 66 UCLA L. REV. DISCOURSE 154 (2019).
42
   Masterpiece Cakeshop, 138 S. Ct. at 1723.
43
   Id. at 1727.
44
   Id.
45
   Id.
46
   Id.
47
   Id. at 1728.
48
   Id.


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Rather than addressing the coerced expression, Kennedy opted to address the
requirement that the government approach religion from a perspective of neutrality.
This approach provided a more efficient way to resolve the case, without the Court’s
having to formulate new constitutional doctrine. Kennedy’s opinion reflected the ideal
of U.S. constitutional theorist Alexander Bickel, who promoted what he called the passive
virtues, via which a court avoids deciding cases on the merits when it can dispose of them
in less involved ways.49 Such an approach can avoid judicial overreach.
          Specifically, as Kennedy observed things, the Colorado Civil Rights Commission
had not taken a neutral position toward religion in handling the case before it.50 At one
meeting, a commissioner had stated the following:

           “Freedom of religion and religion has been used to justify all kinds of
           discrimination throughout history, whether it be slavery, whether it
           be the holocaust, whether it be—I mean, we—we can list hundreds of
           situations where freedom of religion has been used to justify
           discrimination. And to me it is one of the most despicable pieces of
           rhetoric that people can use to—to use their religion to hurt
           others”.51

Other commissioners apparently had not objected to this discourse.52
          Adding to the above, Kennedy discussed three different cases in which the Civil
Rights Division, a subpart of the Commission, had allowed bakers to refuse to make cakes
that expressed anti-same-sex marriage messages. In the other cases, the Division had not
addressed the issue of whether attribution of the messages on the cakes would be to the
customers or the bakers.53 In contrast, in Phillips’ case, the Commission had decided that
the attribution of the message from the cake would be to the two men who bought the cake,
and not to the man who made the cake.54 Kennedy believed that the Commission had given
Phillips’ religious objection less weight than the other bakers’ non-religious objections.55
Government assessment of the offensive nature of a message was an impermissible means
of distinguishing between Phillips’ case and those of the other bakers.56


49
   See generally ALEXANDER M. BICKEL, THE LEAST DANGEROUS BRANCH: THE SUPREME COURT AT THE BAR OF POLITICS
   111-98 (1st ed. 1962).
50
   See Masterpiece Cakeshop, 138 S. Ct. at 1729.
51
   Id.
52
   Id.
53
   Id. at 1730.
54
   Id.
55
   Id.
56
   Id. at 1731.


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     A TRANS-ATLANTIC CONVERSATION ON THE TENSION BETWEEN ANTI-DISCRIMINATION LAW
                        AND THE FREEDOMS OF RELIGION AND SPEECH


With the lack of neutrality toward religion in the proceedings below, Kennedy found a
violation of the First Amendment.57 Still, he admitted that the result in a case with
neutrality toward religion would have to wait.58                       He instructed lower judicial and
quasi-judicial entities to act “with tolerance, without undue disrespect to sincere
religious beliefs, and without subjecting gay persons to indignities when they [sought]
goods and services in an open market”.59
           Several other Justices wrote opinions in Masterpiece Cakeshop. Since Kennedy’s
majority opinion resolved the case based on a lack of neutrality to religion in the lower
proceedings, and thus, in avoiding a decision on the merits, employed the passive
virtues,60 the other opinions offered more substantively-oriented thinking.
           Justice Elena Kagan, writing for herself and Justice Stephen Breyer, concurred.61
She determined that Phillips had refused to make the cake for the couple based on the
couple’s sexual orientation, but that he would have made the cake for a straight couple.62
57
   Id. at 1732.
58
   Id. Laws that burden religion and are “not neutral or not of general application” must withstand strict
   scrutiny, the most exacting form of judicial review. See Church of the Lukumi Babalu Aye, Inc. v. City of
   Hialeah, 508 U.S. 520, 546 (1993); Masterpiece Cakeshop, 138 S. Ct. at 1734 (Gorsuch, J., concurring). Because
   the Supreme Court resolved Masterpiece Cakeshop on lack of neutrality grounds, the Court did not have the
   opportunity to re-consider the standard appropriate for infringement of free exercise of religion when
   government action does not specifically target religious exercise, but rather impacts such free exercise via
   a neutral law of general application. In Masterpiece Cakeshop, this likely would have been the situation with
   the Colorado Anti-Discrimination Act if the administrative process had lacked the hostility toward religion
   on which Kennedy hung the Court’s decision. As of Masterpiece Cakeshop, the standard for judicial review of
   neutral laws of general application that happen to burden free exercise remained rational basis, the most
   deferential form of judicial review. See Employment Division v. Smith, 494 U.S. 872 (1990). See also ERWIN
   CHEMERINSKY, CONSTITUTIONAL LAW: PRINCIPLES AND POLICIES 1375 (6th ed. 2019).
   Employment Division v. Smith has been controversial, with some calls for overturning the decision to promote
   greater protection for free exercise rights. See, e.g., Church of Lukumi Babalu Aye, 508 U.S. at 520 (Souter, J.,
   concurring in part and concurring in the judgment); Fulton v. City of Philadelphia, 141 S. Ct. 1868, 1883
   (2021) (Alito, J., concurring in the judgment). In his Fulton v. City of Philadelphia concurrence, which Justices
   Clarence Thomas and Neil Gorsuch joined, Justice Samuel Alito stated, “As long as [Smith] remains on the
   books, it threatens a fundamental freedom”. Id. at 1924. One possible replacement for Smith would be to
   require a law that would put “a substantial burden on religious exercise” to pass strict scrutiny review.
   Id. In effect, this would reinstate the standard prior to Smith. See Sherbert v. Verner, 374 U.S. 398, 406
   (1963) (articulating strict scrutiny as the standard of judicial review for a law that burdened free exercise of
   religion).
   Despite Smith, the Supreme Court has assumed that the Religious Freedom Restoration Act of 1993
   [hereinafter R.F.R.A.], a political response to Smith by the U.S. Congress, effectively elevated the standard
   of judicial review for infringement of free exercise of religion by neutral federal laws, as opposed to those of
   the states, to strict scrutiny. See, e.g., Burwell v. Hobby Lobby, 573 U.S. 682, 694-95 (2014). The Court struck
   down R.F.R.A. as applied to the states in City of Boerne v. Flores, 521 U.S. 507, 519 (1997) (maintaining that
   Congress could not create or enhance rights under Section 5 of the Fourteenth Amendment). Nonetheless,
   the Court has applied R.F.R.A. against federal action. See, e.g., Hobby Lobby, 573 U.S. at 682 (upholding, under
   R.F.R.A., the free exercise rights of owners of closely-held corporations against a U.S. Department of Health
   and Human Services requirement that for-profit companies provide employees with health insurance that
   included contraceptive methods, which the owners considered to be abortifacients, or pay fines).
59
   Masterpiece Cakeshop, 138 S. Ct. at 1732.
60
   See BICKEL, supra note 49, at 111-98.
61
   See Masterpiece Cakeshop, 138 S. Ct. at 1733.
62
   Id.


                                                        190
2023]                      UNIVERSITY OF BOLOGNA LAW REVIEW                       [Vol. 7:2


Because Phillips had not discussed a specific message for the cake with his two potential
customers, Kagan saw the cake as something that celebrated a generic marriage.63
Nonetheless, Kagan agreed with the Court that the state proceedings had suffered from
an infusion of hostility toward religion.64
           Justice Neil Gorsuch, writing for himself and Justice Clarence Thomas, also
concurred.65 Gorsuch offered a detailed treatment of what he agreed was a lack of
religious neutrality to Phillips in the state proceedings. He noted that Phillips was aware
that the two men were asking him to make a cake for their wedding, which would have
involved making a cake for a same-sex wedding; preparing a cake for such a wedding
violated Phillips’ religious convictions.66 Unlike Kagan, Gorsuch viewed the cake as one
that celebrated same-sex marriage.67 Phillips testified that he would have declined to
make a cake for any customer, regardless of sexual orientation, who ordered a cake for a
same-sex wedding.68 As Gorsuch saw it, Phillips lacked the intent to discriminate based
on the potential customers’ sexual orientation; the cake, not the customers, made the
difference.69
           The concurring Justice pointed out that the Commission presumed Phillips to
have had a negative intent, but did not so presume of the bakers in the Jack cases, the
other bakery cases that Justice Kennedy had mentioned.70 The Commission would not be
allowed to “apply a more generous legal test to secular objections than religious ones”.71
           Gorsuch maintained that, whether they had words or not, wedding cakes were
involved in communication. He suggested that if Jack had asked for a cake with a purely
nonverbal message, rather than a verbal message, against same-sex marriage, the bakers
still would have refused to make the cake.72 A wedding cake was like a flag or an emblem;
words were not necessary for a message to occur.73
           On a related note, Gorsuch insisted that the Commission be consistent in
applying the level of generality to different parties that appeared before it.         The
Commission should not have told Phillips that the wedding cake was “a generic wedding
cake” when it had agreed with the bakers in the Jack cases “that the specific cakes Mr.

63
   Id.
64
   Id. at 1734.
65
   Id.
66
   Id. at 1735.
67
   Id.
68
   Id.
69
   Id. at 1735-36.
70
   Id. at 1736.
71
   Id. at 1737.
72
   Id. at 1738.
73
   Id.


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Jack requested conveyed a message offensive to their convictions and allowed them to
refuse service”.74 “Such results-driven reasoning [was] improper”, Gorsuch concluded.75
           Justice Clarence Thomas, writing for himself and Justice Gorsuch, wrote an
opinion that concurred in part and concurred in the judgment.76 Acknowledging a free
exercise violation, Thomas chose to focus on the free speech issues in the case.77 Because
case law on the First Amendment is often very pro-speaker, Thomas had much on which
to draw. The Justice turned to the expressive conduct doctrine. Conduct that was
expressive included “nude dancing, burning the American flag, flying an upside-down
American flag with a taped-on peace sign, wearing a military uniform, wearing a black
armband, conducting a silent sit-in, refusing to salute the American flag, and flying a
plain red flag”.78 Thomas acknowledged that, for expressive conduct to receive First
Amendment protection, the Court had required both intent to communicate and a
likelihood that the audience would understand the conduct as communicative.79 Still, a
message did not have to be “particularized”.80
           Applying these standards, Thomas noted that Phillips saw himself as an artist.81
To Phillips, the designer of the cake, “a wedding cake inherently communicate[d] that a
wedding ha[d] occurred, a marriage ha[d] begun, and the couple should be celebrated”.82
If someone entered a room with “a white, multi-tiered cake”, Thomas pointed out, the
person most likely would think that a wedding would take place.83 Words were not
necessary for the cake to be communicative.84
           Thomas concluded that Phillips’ making custom wedding cakes constituted
expressive conduct.85 Designing a cake for a same-sex wedding would mandate that
Phillips “acknowledge that same-sex weddings [were] ‘weddings’ and suggest that they
should be celebrated—the precise message he believe[d] his faith forb[ade]”.86 According

74
   Id. at 1738-39.
75
   Id. at 1739.
76
   Id. at 1740.
77
   Id.
78
   Id. at 1741-42 (citing Barnes v. Glen Theatre, Inc., 501 U.S. 560, 565-66 (1991); Texas v. Johnson, 491 U.S. 397
   (1989); Spence v. Washington, 418 U.S. 405, 406, 409-11 (1974) (per curiam); Schacht v. United States, 398
   U.S. 58, 62-63 (1970); Tinker v. Des Moines Independent Community School Dist., 393 U.S. 503, 505-06 (1969);
   Brown v. Louisiana, 383 U.S. 131, 141-42 (1966) (opinion of Fortas, J.); West Virginia Bd. of Educ. v. Barnette,
   319 U.S. 624, 633-34 (1943); Stromberg v. California, 283 U.S. 359, 361, 369 (1931)).
79
   See Masterpiece Cakeshop, 138 S. Ct. at 1742.
80
   Id. (quoting Hurley v. Irish-American Gay, Lesbian, and Bisexual Group of Boston, Inc., 515 U.S. 557, 569
   (1995)).
81
   Id.
82
   Id. at 1743.
83
   Id.
84
   Id. at 1743 n.2.
85
   Id. at 1743.
86
   Id. at 1744.


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to Phillips, such a message would contradict messages that the baker sent via his
conduct, including the following conduct: being closed on Sunday; paying employees
wages above the minimum required by law; loaning employees funds when needed; not
baking cakes with alcohol; not creating cakes with racist, homophobic, or anti-God
messages; and not making cakes for Halloween.87
          Due to the expressive nature of Phillips’ conduct, and because the government
normally would not have punished someone for refusal to make a custom wedding cake,
Thomas decided that the government needed to satisfy strict scrutiny analysis, the most
exacting standard of judicial review.88 This standard followed from the Texas v. Johnson
flag-burning case.89
          Thomas examined one particular justification offered for the state law, which
was to protect the dignity of same-sex couples.90 Further drawing upon Johnson, Thomas
insisted that the government “[could] not punish protected speech because some group
[found] it offensive, hurtful, stigmatic, unreasonable, or undignified”.91 Also, in the
wedding cake situation, any such offense, hurt, stigma, or similar response surely would
be less than that which would have followed a sexual minority’s viewing a sign with
“‘God Hates Fags’” on it or an African-American’s witnessing the burning of a
twenty-five-foot-tall cross by white supremacists—types of communication the Court
had previously protected under the First Amendment.92
          Thomas insisted that, after the controversial Obergefell v. Hodges decision, in
which the Supreme Court had read the U.S. Constitution to protect a right to same-sex
marriage, people who disagreed with same-sex marriage still had a constitutional right
to voice their views.93         Quoting Justice Samuel Alito’s dissent in Obergefell, Thomas
warned against using Obergefell “to ‘stamp out every vestige of dissent’ and ‘vilify
Americans who [were] unwilling to assent to the new orthodoxy’”.94 Consequently, in
the absence of a compelling justification for the government action, Thomas found a
violation of Phillips’ right to free speech.



87
   Id. at 1745.
88
   Id. at 1745-46.
89
   Id. at 1746. See Texas v. Johnson, 491 U.S. 397 (1989) (upholding the right of a protester to burn the
   U.S. flag). For a discussion of Johnson and the ensuing political debate over what proponents called a flag
   protection amendment to the U.S. Constitution, see David J. Vergobbi, Texas v. Johnson, in FREE SPEECH ON
   TRIAL: COMMUNICATION PERSPECTIVES ON LANDMARK SUPREME COURT DECISIONS 281 (Richard A. Parker ed., 2003).
90
   Masterpiece Cakeshop, 138 S. Ct. at 1746.
91
   Id.
92
   Id. at 1747.
93
   Id. See Obergefell v. Hodges, 576 U.S. 644 (2015).
94
   Masterpiece Cakeshop, 138 S. Ct. at 1748.


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 Justice Ruth Bader Ginsburg, writing for herself and Justice Sonya Sotomayor, provided
 the only dissenting opinion, claiming that Craig and Mullins should have won the case.95
 Ginsburg questioned whose message the wedding cake conveyed, the baker’s or the
 couple’s, and also queried what the message was.96
             Ginsburg contrasted the Jack cases with the Craig and Mullins case. Jack had asked
 for two cakes that opposed same-sex marriage, and he had approached three bakers.97
 Craig and Mullins asked for a wedding cake without indicating a desire for distinguishing
 features on the cake.98 In the Jack cases, Ginsburg felt that the bakers would have refused
 to create the anti-same-sex marriage cake for any customer, regardless of the customer’s
 religion.99 In contrast, Phillips would not bake a cake for Craig and Mullins, a gay couple,
 that he would bake for other customers.100 Ginsburg claimed that, in the first case, the
 message, rather than the protected category of religion, had been at issue, but, in the
 second case, the protected category of sexual orientation, not the message, was at issue.101
             Ginsburg believed that, in Phillips’ case, the offensive nature of the message
 associated with the cake was a function of the identity of the customers who had
 requested the cake.102 In the Jack cases, the bakers had refused to make cakes based on a
 negative message that was “literally display[ed]”.103 The cakes Jack had requested had
 “particular text”.104
             In terms of the issue of lack of neutrality toward religion in the administrative
 proceedings, the dissenting Justice downplayed what she described as “the comments of
 one or two Commissioners”.105 The process, she noted, had “involved several layers of
 independent decisionmaking, of which the Commission was but one”.106




95
    Id.
96
    Id. at 1748 n.1.
 97
    Id. at 1749.
 98
    Id.
 99
    Id. at 1750.
100
    Id.
101
    Id.
102
    Id.
103
    Id. at 1750-51.
104
    Id. at 1751 n.5.
105
    Id. at 1751.
106
    Id.


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       3. THE OPINION OF THE U.K. SUPREME COURT

 On the other side of the Atlantic Ocean, Lady Brenda Hale wrote an opinion for the U.K.
 Supreme Court on the substantive issue in Lee v. Ashers Baking Company, Ltd.107 Lord
 Jonathan Mance provided an opinion for the Supreme Court on the Court’s jurisdiction
 regarding an appeal,108 which is beyond the scope of this paper. All five Justices who
 heard the case joined both opinions.109
           Lady Hale inquired whether a bakery’s declining, based on the religious beliefs of
 its owners, to make a cake with “‘support gay marriage’” on it, was unlawful
 discrimination based on sexual orientation or religious belief or political opinion.110 If
 there were unlawful discrimination, then questions would arise regarding the bakers’
 rights of freedom of religion and expression under the E.C.H.R.111
           For sexual orientation discrimination, Hale considered the case under the Equality
 Act (Sexual Orientation) Regulations (Northern Ireland) 2006, also known as S.O.R.s.112 She
 looked at the various types of discrimination based on sexual orientation to see if any of
 those types had been present in the case.
           She determined that there was no direct discrimination. Direct discrimination
 would occur if, based on sexual orientation, someone treated someone else less favorably
 than the first person would treat other people with different sexual orientations.113 Hale
 noted that the district judge had found that the reason that the McArthurs refused to fulfill
 the order was that they opposed same-sex marriage.114 The issue was with “the message,
 not the messenger”.115
           Hale also determined that there was no indissociability at work in any
 discrimination. Indissociability occurs in a situation when an express criterion employed
 to justify discrimination is a proxy for a protected characteristic.116 In this case, people
 of differing sexual orientations, not just sexual minorities, could support same-sex

107
    See Lee v. Ashers Baking Company, Ltd. [2018] UKSC 49, [5] (N. Ir.). For a discussion of how the Northern
    Ireland Court of Appeal addressed the case under Article 10 of the E.C.H.R., see David Capper, Free Speech Is
    Not a Piece of Cake, in FREE SPEECH AND MEDIA LAW IN THE 21ST CENTURY 105 (Russell L. Weaver, András Koltay,
    Mark D. Cole & Steven I. Friedland eds., 2019).
108
    See Ashers Baking, UKSC 49 at [62.5].
109
    Id. at [.5], [62.5].
110
    Id. at [1].
111
    Id.
112
    Id. at [3], [20].
113
    Id. at [20].
114
    Id. at [22].
115
    Id.
116
    Id. at [25].




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 marriage, so supporting same-sex marriage would not necessarily be a proxy for
 someone to be a sexual minority.117
            Likewise, Hale refused to find a case for associative discrimination.                            Such
 discrimination would be based on someone else’s sexual orientation, rather than that of
 the person who made the claim.118 In this case, the record indicated that the McArthurs
 had employed and done business with sexual minorities, just as the couple had employed
 and done business with straight people.119 The couple had not acted based on Lee’s
 association with sexual minorities, but on its religious belief about marriage.120
            In terms of sexual orientation discrimination, Hale concluded that “the objection
 was to the message and not to any particular person or persons”.121 Nonetheless, she made
 an effort to acknowledge what she described as “the very real problem of discrimination
 against gay people”.122
            For religious belief or political opinion discrimination, Hale considered the case
 in light of various acts, including the Government of Ireland Act 1920, the Northern
 Ireland Constitution Act 1973, and the Northern Ireland Act 1998, all of which had
 afforded constitutional status to protection from discrimination based on religious belief
 or political opinion.123 In particular, the Fair Employment and Treatment (Northern
 Ireland) Order 1998 [hereinafter F.E.T.O.] prohibited such discrimination regarding goods
 and services.124
            At this point in her opinion, Hale saw three related questions. First, had the
 McArthurs discriminated against Lee because of his political opinions?125 Second, if
 there were such discrimination, was F.E.T.O. invalid, or should the Court read down
 F.E.T.O.,126 based on incompatibility with Articles 9 and 10 of the E.C.H.R.?127 Third, if the
 answer to the first question were affirmative, and the answer to the second question
 were negative, would F.E.T.O. be invalid under the Northern Ireland Constitution Act



117
    Id.
118
    Id. at [27].
119
    Id. at [28].
120
    Id.
121
    Id. at [34].
122
    Id. at [35].
123
    Id. at [37].
124
    Id. at [3]. From the 1970s to the 1998 Good Friday Agreement, anti-discrimination legislation proved
    controversial in a politically divided Northern Ireland. Christopher McCrudden, The Gay Cake Case: What
    the Supreme Court Did, and Didn’t, Decide in Ashers, 9 OXFORD J.L. & RELIGION 238, 268 (2020).
125
    See Ashers Baking, UKSC 49 at [40].
126
    In this context, reading down a statute is reading the statute narrowly to facilitate its compatibility with the
    E.C.H.R. See also Neil Duxbury, Reading Down, 20 GREEN BAG 2D 155 (2017).
127
    See Ashers Baking, UKSC 49 at [40].


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 1974 for facilitating civil liability for the refusal to convey a politically-based opinion that
 violated the religious beliefs of the individuals who refused to convey that opinion?128
           Hale determined that, under F.E.T.O., less favorable treatment had to be based on
 the religious belief or the political opinion of another person besides the person who
 discriminated.129 Again, Hale accepted that any discrimination that may have occurred
 “was afforded to the message not to the man”.130 The McArthurs, she wrote, faced a
 situation similar to that of a Christian printing business that was “required to print
 leaflets promoting an atheist message”.131 Still, Hale acknowledged the possibility that
 Lee’s political opinions and the message he sought to promote were indissociable.132
           Because of the possibility of indissociability, Hale looked to the McArthurs’
 rights under the E.C.H.R. Article 9 of the E.C.H.R. protects freedom of thought,
 conscience, and religion.133 The E.Ct.H.R. had decided that forcing someone to express a
 belief that contradicted that person’s beliefs was a violation of Article 9.134 This principle
 had arisen in a case in which non-believers, to retain their seats in their parliament, had
 to take a Christian oath.135
           Hale also noted that Article 10 of the E.C.H.R., which protects freedom of
 expression, implied a freedom against expressing views one did not hold.136 She
 expounded upon the principle by drawing upon the U.S. Supreme Court’s development,
 under the First Amendment, of the compelled speech doctrine.137 Hale accepted that, in
128
    Id. at [40].
129
    Id. at [45].
130
    Id. at [47].
131
    Id.
132
    Id. at [48].
133
    Id. at [49]. See European Convention on Human Rights §1, art. 9, Nov. 4, 1950, https://www.echr.coe.
    int/documents/convention_eng.pdf [hereinafter E.C.H.R.].
134
    See Ashers Baking, UKSC 49 at [50].
135
    Id.
136
    Id. at [52]. See E.C.H.R., supra note 133, at art. 10.
137
    See Ashers Baking, UKSC 49 at [53].
    For U.S. case law on the compelled speech doctrine, see West Virginia State Board of Education v. Barnette,
    319 U.S. 624 (1943) (holding that a state could not force public schoolchildren, whose parents objected on
    religious grounds, to salute the U.S. flag); Wooley v. Maynard, 430 U.S. 705 (1977) (determining that a state
    could not punish a driver for covering the state motto “Live Free or Die” on his license plate, when the driver
    objected to the motto on religious grounds); Hurley v. Irish-American Gay, Lesbian and Bisexual Group of Boston,
    515 U.S. 557 (1995) (holding that the government could not require a private group that organized a parade to
    include in the parade messages contrary to the group’s views). In Barnette, Justice Robert Jackson wrote, “If
    there is any fixed star in our constitutional constellation, it is that no official, high or petty, can prescribe
    what shall be orthodox in politics, nationalism, religion, or other matters of opinion or force citizens to
    confess by word or act their faith therein”. See Barnette, 319 U.S. at 642.
    Prior to Ashers Baking, the Justices of the U.K. Supreme Court, including those who were sitting as the Judicial
    Committee of the Privy Council, had begun to sketch out their own understanding of the compelled speech
    doctrine. See RT (Zimbabwe) v. Secretary of State for the Home Department [2012] UKSC 38, [32]-[39]
    (consulting various international and comparative authorities to develop the compelled speech doctrine in
    the U.K.); Commodore of the Royal Bahamas Defence Force v. Laramore [2017] UKPC 13 (finding compelled
    participation of a member of the armed forces in a Christian ceremony to be unconstitutional).


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 having to make a cake that promoted same-sex marriage, the McArthurs were forced to
 communicate “a message with which they deeply disagreed”.138 A relatively specific
 message confronted the Court. While the nature of the cake in Masterpiece Cakeshop was
 not necessarily clear,139 the nature of the cake in Ashers Baking was.140 As noted above,
 the proposed cake in the U.K. case contained the Ernie and Bert characters, the logo of
 QueerSpace, and the words “‘Support Gay Marriage’”.141 Although the McArthurs could
 not refuse to sell a cake to Lee based on his sexual orientation or his political views, the
 Court would not, in the absence of suitable justification, read F.E.T.O. as allowing the
 government to force the McArthurs to communicate against their beliefs.142
            The Human Rights Act 1998 requires the higher courts in the U.K. to read
 legislation in a manner compatible with the rights in the E.C.H.R., provided that this is
 possible.143 As such, and based on the above discussion, Hale read F.E.T.O. in a manner
 compatible with Articles 9 and 10 of the Convention.144
            Of particular interest to the present paper, Hale included a postscript in her
 opinion that referred to the Masterpiece Cakeshop case decided earlier the same year. Hale
 distinguished the facts of the two cases. The U.S. case, Hale observed, did not include a
 specific message on the cake.145
            Hale acknowledged that the majority in Masterpiece Cakeshop had focused on the
 apparent lack of neutrality toward religion in the prior proceedings, but she also paid
 attention to the other opinions in the case, even though they were not controlling.146
 She pointed out that Justices Ginsburg and Sotomayor had made a distinction between
 objecting to a cake’s message and objecting to the individual who sought to purchase the
 cake; in Masterpiece Cakeshop, the dissenters thought that the objection was to the
 individual who sought to purchase the cake.147 Hale read Justices Kagan and Breyer as

138
    Ashers Baking, UKSC 49 at [54].
139
    See Masterpiece Cakeshop, Ltd. v. Colorado Civil Rights Commission, 138 S. Ct. 1719, 1724 (2018).
140
    See Ashers Baking, UKSC 49 at [12].
141
    Id.
142
    Id. at [55]-[56]. Hale did not explain how she balanced the McArthurs’ rights of freedom of religion and
    speech against Lee’s right to be free from discrimination. See Steve Foster, Accomodating Intolerant Speech:
    Religious Free Speech Versus Equality and Diversity, 2019 EUR. HUM. RTS. L. REV. 609, 614-15.
    Hale did note that technically the limited company Ashers Baking refused to sell the cake. See Ashers Baking,
    UKSC 49 at [57]. Companies do not have a right to freedom of religion under the E.C.H.R., but the McArthurs
    did. Id. Companies do have other rights under the Convention, including to property, fair trial, privacy,
    and freedom of expression. See Stéfanie Khoury, Transnational Corporations and the E.Ct.H.R.: Reflections on the
    Indirect and Direct Approaches to Accountability, 4 SORTUZ: ONATI J. EMERGENT SOCIO-LEGAL STUD. 68, 75, 75 n.17
    (2010).
143
    See Ashers Baking, UKSC 49 at [56]. See Human Rights Act 1998 § 3(1) (UK).
144
    See Ashers Baking, UKSC 49 at [56].
145
    Id. at [59].
146
    Id. at [60]-[61].
147
    Id. at [61].


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 accepting the possibility that Phillips had objected to the sexual orientations of the
 potential customers.148 To the contrary, Hale noted that Justices Thomas and Alito had
 focused on the idea that making a cake for a same-sex wedding was expressive conduct
 and that Justice Gorsuch had declined to distinguish between a cake that had words and a
 cake that lacked words.149 Overall, Hale read the opinions in Masterpiece Cakeshop, as
 relevant to Ashers Baking, to say that denying the sale of a cake with a specific message to
 anyone was lawful, but that denying the sale of a cake to someone because of that
 person’s sexual orientation was not.150




       4. ANALYSIS OF KEY COMMUNICATION ISSUES IN THE CASES

 Placed in conversation with each other, the opinions in Masterpiece Cakeshop and Ashers
 Baking present some thought-provoking communication issues. For instance, do both a
 specific cake and a generic cake convey messages? Who would be behind sending those
 messages? Who would constitute the audience? Does context matter? These issues draw
 upon many of the key elements in the process of human communication, including
 channel/medium, message, speaker/sender, listener/receiver/audience, feedback, and
 situation/context.151 The precise nomenclature for elements of communication can vary
 from theorist to theorist.
           To begin with, do both a specific cake and a generic cake convey messages? If
 communicative, the cakes would be the channels of communication. Flour, sugar, butter,
 eggs, baking powder, and other ingredients would serve communicative purposes. In
 terms of message, as Lady Hale saw it, the U.K. cake would have been specific, but the
 U.S. cake would not have been.152 On the U.K. cake, Bert and Ernie from Sesame Street
 would have appeared along with “‘Support Gay Marriage’” and the QueerSpace logo.153
 Although disputed, one reading of Bert and Ernie, two bachelors who live together, is
 queer.154 The verbal imperative of the message would have been explicit in promoting
148
    Id.
149
    Id.
150
    Id. at [62].
151
    See STEPHEN E. LUCAS & PAUL STOB, THE ART OF PUBLIC SPEAKING 17-21 (13th ed. 2020). Interference/noise
    is another important element of human communication. See id. at 20. For a discussion of how models of
    communication developed from linear (one-way) to interactive (two-way) to transactional (communicators
    as both senders and receivers of messages), see JULIA T. WOOD, COMMUNICATION IN OUR LIVES 8-11 (8th ed.
    2018).
152
    See Ashers Baking, UKSC 49 at [59].
153
    Id. at [12].
154
    See Martin Pengelly, Sesame Street Disputes Writer’s Claim That Bert and Ernie Are Gay, GUARDIAN (Sept.
    18, 2018, 5:51 PM EDT), https://www.theguardian.com/tv-and-radio/2018/sep/18/sesame-street-bert-and-
    ernie-remain-puppets-and-do-not-have-a-sexual-orientation.
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 support for same-sex marriage, and the QueerSpace logo would have identified the
 associated organization. Thus, a specific message in support of same-sex marriage was
 present.
            This U.K. cake may have been more specific than the cake that Craig and Mullins
 were going to order for their wedding. They apparently did not discuss a specific type of
 cake with Phillips.155 For the sake of discussion, the assumption will be that they wanted
 a generic white wedding cake with flowers on it. A generic wedding cake does let the
 audience know that a wedding is taking place or will take place. While the cake is not
 necessarily clear about whether the wedding is civil or religious, queer or heterosexual,
 if someone entered a room with a generic white cake with flowers on it, the person most
 likely would know that two adults would be joined in marriage, a point Justice Thomas
 raised in his opinion.156              Because of cultural conditioning via media and personal
 experience, an association exists between marriage and a white cake with flowers on it.
 Words are not necessary for communication,157 a principle that Justice Gorsuch
 recognized.158 With the generic wedding cake, a message exists, even in the absence of
 words or other symbols that would add specificity.
            If a generic cake were not communicative,159 it could not impart a message, but
 such a cake can impart a message, so it is communicative. Here, a hypothetical is
 instructive. First, one can imagine the inscription “Congratulations, Bill and Steve!” by
 itself. Without more, one may have little idea as to what the inscription refers. Perhaps
 Bill and Steve had a successful first year of operating a business, retired at the same time,
 won the men’s doubles at Wimbledon, or returned safely from conquering Mount
 Everest.       Any of these may be possible.                   Second, one can imagine the inscription
 “Congratulations, Bill and Steve!” placed upon an otherwise generic white cake with
 flowers on it. Under this scenario, Bill and Steve most likely are marrying each other.
 The otherwise generic cake, when carrying the inscription, changes the message of the
 inscription dramatically, from addressing almost anything positive that two men could
 have done to commemorating a marriage between two men.
            Difference exists between a cake with a more explicit message and a cake with a
 less explicit message. The meaning of the former is less fuzzy. While not offering a full

155
    See Masterpiece Cakeshop, Ltd. v. Colorado Civil Rights Commission, 138 S. Ct. 1719, 1724 (2018).
156
    Id. at 1743.
157
    See Franklyn S. Haiman, The Rhetoric of the Streets: Some Legal and Ethical Considerations, 53 Q.J. SPEECH 99, 99
    (1967).
158
    See Masterpiece Cakeshop, 138 S. Ct. at 1738.
159
    See András Koltay, Confectionery Excellence in the Flow of Religion and Politics: Cakes and Constitutional Rights Before
    the British and American Supreme Courts, in CHRISTIANITY AND HUMAN RIGHTS: PERSPECTIVES FROM HUNGARY 357,
    374 (András Koltay ed., 2021) (maintaining that a cake, without an inscription, is not communicative).


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 policy plan, the cake with the specific message, “‘Support Gay Marriage’”,160 did offer a
 position on a controversial political topic. A generic cake would not. Still, as noted above,
 a generic wedding cake would inform an audience that a wedding of some sort would be
 taking place. Although both cakes would be involved in the communication process, the
 latter would have a fuzzier message.
           If both cakes would have served as channels for sending messages, who would
 have sent the messages? Justice Kennedy touched on this issue in his opinion but did not
 get very far with it because of the way the U.S. Supreme Court resolved the case on the
 grounds of a lack of government neutrality toward religion.161 Nonetheless, since Craig
 and Mullins planned to order the cake to announce their wedding, they would have been
 behind the wedding cake’s message. Likewise, since Lee ordered the cake to promote
 same-sex marriage, he would have been behind the cake’s message. One could argue that
 an organization for whom someone volunteers is also behind a message, but, in this case,
 Lee apparently decided by himself to bring the particular cake to the party in
 question.162
           The prospective purchasers may not have been the only people who would have
 been behind the proposed messages. If one thinks of bakers as ghostwriters, who are
 frequently anonymous, the bakers might not have been known to have been behind the
 proposed messages; no one other than the people who wished to hire the bakers would
 have known who would have crafted the cakes. To the contrary, if the bakers were
 known, something entirely possible when people at gatherings ask about where the
 cakes came from, especially in a smaller community, then members of the community
 might wonder whether the bakers were intending to send the messages. For example, if
 members of Phillips’ worship community were aware that he knowingly had crafted a
 cake designed especially for a same-sex wedding, the members may have thought of
 Phillips as a hypocrite. However, if members of his worship community knew that he
 merely had sold a generic cake off the shelf, which later was used at a same-sex wedding,
 they may have been less likely to think of him as a hypocrite because the degree of
 involvement would have been lower. If members of the McArthurs’ worship community
 were aware that the McArthurs had crafted a cake that called for support of same-sex
 marriage, the members may have thought of the McArthurs as hypocrites. Whether
 anyone besides those who attempted to place the orders knew that the bakers had
 crafted the cakes would be important to determining who may have sent, or been
 perceived to have sent, the messages.
160
    See Lee v. Ashers Baking Company, Ltd. [2018] UKSC 49, [12] (N. Ir.).
161
    See Masterpiece Cakeshop, 138 S. Ct. at 1730.
162
    See Ashers Baking, UKSC 49 at [10].


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 Who would constitute the audience for the message?                        Presumably, the guests at a
 wedding would be the intended audience for the message associated with a wedding
 cake. Likewise, the guests at a political event would be the intended audience for a
 politically-oriented cake. In a digital world, online individuals could also be secondary
 audiences, as people who attended an event may share photos of an event cake online.
 Furthermore, as suggested above, if members of a baker’s religious or other community
 were to find out who made a cake in question, they could constitute an unintended
 audience for the message. Unintended audience perceptions of religious hypocrisy,
 specifically putting profit above one’s beliefs, may have caused damage to the
 reputations of Phillips and the McArthurs in their respective worship communities. Such
 damage may have resulted in negative feedback from members of the worship
 communities.
            Additionally, does the communication situation matter? A situation in which a
 baker, ignorant of the context in which a wedding cake would be used, merely sold a
 generic wedding cake, even one he had crafted himself for anyone’s wedding, to a
 member of a same-sex couple for that couple’s wedding would not involve the baker’s
 knowingly having crafted a message, generic or specific, for a same-sex wedding. The
 baker would have sold someone a generic product, albeit still one with a message,
 without any discussion of the context for the cake. This situation would be somewhat
 akin to renting a hotel room to a gay couple, which, in Bull v. Hall,163 the U.K. Supreme
 Court required an objecting Christian couple to do. However, the hypothetical situation
 would involve a lower level of knowledge than the actual situation in Bull v. Hall. Key is
 the absence of being forced to knowingly craft a message in violation of one’s religious,
 political, or other beliefs that would fall under the rubric of compelled speech, which
 Lady Hale addressed in her opinion in Ashers Baking.164 If Justices Kagan and Ginsburg’s
 vision of a generic wedding cake had not included the baker’s involvement in a creative
 process with knowledge of the context for the cake,165 and thus involved compelled
 speech, their vision would be applicable here.
            This discussion of various communication issues suggests that, at a minimum,
 legal systems ought to consider several factors in determining whether the law should
 require a baker to sell a baked good like a cake to a customer where the baked good
 conveys a message in opposition to the baker’s religious, political, or other beliefs. As

163
    See Bull v. Hall [2013] UKSC 73.
164
    See Ashers Baking, UKSC 49 at [53].
165
    See Masterpiece Cakeshop, 138 S. Ct. at 1733. Ginsburg called the cake “a cake celebrating their wedding—not
    a cake celebrating heterosexual weddings or same-sex weddings”. See id. However, the wedding for which
    Craig and Mullins tried to order a cake was a same-sex wedding. The situation would change the message
    associated with the cake.


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 Lady Hale wrote, the objection should be “to the message not to the man”.166 If the
 objection is to the potential customer and not the message, the legal inquiry would not
 need to proceed further. Otherwise, various factors, including the following, should be
 considered.
           First, how specific is the message? The more specific the message is, the less likely
 the baker should be forced to help create it. For instance, a generic white wedding cake,
 already on display, would not be very specific, but a custom-made wedding cake with two
 women on it would be more specific, as would a custom-made wedding cake with the words
 “Congratulations on Your Wedding, Chantal and Judith”.
           Second, how likely is the baker to be identified as the creator of the baked good
 and potentially a sender of the associated message? Making a custom cake, even one with a
 somewhat fuzzier message, would take a greater degree of involvement than simply selling
 a cake off the shelf. Moreover, the size of the community is important. The larger the
 community is, the less likely a particular baker’s involvement in making a baked good
 would be to stand out. Nonetheless, if a baker is known in the community for having taken
 a particular position on a religious matter in the public sphere, making a baked good that
 would contradict that position would be problematic.
           Third, is the baker aware of the situation in which the baked good will be used?
 The more the baker knows the situation, and thus is potentially more actively involved
 in that context, such as by baking a custom-made wedding cake, the less likely the baker
 should be forced to create the baked good. To the contrary, selling a cake off the shelf
 would require minimal, if any, discussion of a wedding, and thus less knowledge of the
 situation by the baker.
           While reflecting special concern about government-compelled speech, much like
 Justice Thomas167 and Lady Hale,168 the above factors recognize that the rights of freedom
 of religion and speech are not absolute.169 The right to be free from discrimination based
 on a particular classification, itself also not absolute, has its place, too.170




166
    See Ashers Baking, UKSC 49 at [47].
167
    See Masterpiece Cakeshop, 138 S. Ct. at 1743-44.
168
    See Ashers Baking, UKSC 49 at [53]-[54].
169
    See René Reyes, Masterpiece Cakeshop and Ashers Baking Company: A Comparative Analysis of Constitutional
    Confections, 16 STAN. J. CIV. RTS. & Civ. Liberties 113, 139 (2020).
170
    Id.


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 Inevitably, some give and take will be necessary,171 and these will play out in the balancing
 process in court.172




         CONCLUSION

 From a comparative perspective, this paper has examined the opinions of the U.S. and
 U.K. Supreme Courts in Masterpiece Cakeshop, Ltd. v. Colorado Civil Rights Commission and Lee
 v. Ashers Baking Company, Ltd., focusing on key communication issues in the two cases.
 Based on this analysis, the paper has maintained that court systems should consider, at a
 minimum, several factors in cases in which anti-discrimination law clashes with the
 freedoms of religion and speech in the sale of baked goods such as cakes. The factors that
 courts should consider include the following: (1) the specificity of the message, (2) the
 likelihood that the baker will be identified as the creator of the baked good and thus
 potentially as a sender of the message, and (3) whether the baker knows the the situation
 in which the baked good is to be used. A particular concern, although not the only one, is
 the risk of compelled speech.
            Despite objections from some commentators and members of the bench,
 “[c]onstitutional borrowing and transplantation” do occur.173 The above discussion of
 Masterpiece Cakeshop and Ashers Baking should contribute to a greater understanding of
 the comparative legal issues, as well as the related communication issues, that these two
 important cases presented.                The ongoing likelihood remains that clash between
 anti-discrimination law and the freedoms of religion and speech will occur again not
 only in the U.S. and the U.K., but in other jurisdictions as well.174

171
    See Gerald A. Hornby, Let Them Eat Cake: A Comparative Analysis of Recent British and American Law on Religious
    Liberty, 58 DUQ. L. REV. 377, 405-07 (2020). But see generally Jeremiah A. Ho, Queer Sacrifice in Masterpiece
    Cakeshop, 31 YALE J.L. & FEMINISM 249 (2020).
172
    See Sarah Fraser Butlin, Cakes in the Supreme Court, 78 CAMBRIDGE L.J. 280, 283 (2019). But see generally Richard
    Moon, Conscientious Objection and the Politics of Cake-Making, 9 OXFORD J.L. & RELIGION 329 (2020) (contending
    that courts should move away from balancing the competing rights of free exercise and freedom from
    discrimination).
173
    See Michel Rosenfeld & András Sajó, Introduction, in THE OXFORD HANDBOOK OF COMPARATIVE CONSTITUTIONAL
    Law 1, 13 (Michel Rosenfeld & András Sajó eds., 2012).
174
    See generally Elphick, supra note 6. In the U.S., several years after the Supreme Court decided Masterpiece
    Cakeshop, the Court agreed to hear 303 Creative, LLC v. Elenis, a case in which a Colorado web designer
    wished to provide wedding webpages, but, based on religious belief, planned to refuse to offer her services
    for same-sex weddings. Adam Liptak, Supreme Court to Hear Case of Web Designer Who Objects to Same-Sex
    Marriage, N.Y. TIMES (Feb. 22, 2022), https://www.nytimes.com/2022/02/22/us/colorado-supreme-court-
    same-sexmarriage.html. The web designer wanted to post on her website a message that indicated why she
    would decline to serve potential clients who were involved with same-sex weddings, but such a message
    would have violated Colorado law. Id.


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