Religious-based discrimination in the commercial context on the basis of sexual orientation: A comparative perspective

This paper considers how three jurisdictions, Canada, the United States and the United Kingdom, have sought to reconcile freedom of religion with equality rights, particularly in the commercial context, and particularly in relation to sexual orientation. The recent decisions of the United Kingdom Supreme Court and United States Supreme Court form the backdrop for that discussion. It is argued that the former made piecemeal, and misleading, use of American case law, and a fuller consideration of that jurisdiction’s position was warranted, and would have led to a different view of the recent American decision. It argues that the United Kingdom Supreme Court was in error in viewing a message on a cake ordered from a baker as an example of the baker's expression, leading it to an incorrect conclusion at odds with statutory mandates in the commercial sphere around refusals of service. Both high court decisions risk undermining progress on the equality front.