MASTERPIECE CAKESHOP AND ASHERS BAKING COMPANY, Summaries of Law

Download MASTERPIECE CAKESHOP AND ASHERS BAKING COMPANY and more Summaries Law in PDF only on Docsity! 113 MASTERPIECE CAKESHOP AND ASHERS BAKING COMPANY: A COMPARATIVE ANALYSIS OF CONSTITUTIONAL CONFECTIONS René Reyes* 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. * Assistant Professor, Suffolk University Law School; A.B. Harvard College, J.D. Harvard Law School. I am grateful to Chad Flanders, John Infranca, Sharmila Murthy, and Jessica Reyes for helpful conversations and thoughtful comments on earlier drafts. 114 STANFORD JOURNAL OF CIVIL RIGHTS & CIVIL LIBERTIES [XVI:113 INTRODUCTION .......................................................................................... 114 I. COMPARATIVE CONSTITUTIONAL CONTEXT ......................................... 116 A. Factual Settings ....................................................................... 117 B. Legal Frameworks ................................................................... 119 II. OPINIONS OF MANY LAYERS ................................................................ 128 A. Masterpiece Cakeshop ............................................................ 129 B. Ashers Baking Company ......................................................... 134 III. THE VALUE OF CONSTITUTIONAL CONVERSATIONS ........................... 140 CONCLUSION ............................................................................................. 145 INTRODUCTION The U.S. Supreme Court’s decision in Masterpiece Cakeshop, Ltd. v. Colorado Civil Rights Commission1 has been strongly criticized for its failure to engage with difficult constitutional questions and for its absence of analytical clarity.2 The case involved free exercise and free speech challenges brought by a baker who refused to create a wedding cake for two men on the basis that to provide the cake “would be equivalent to participating in a celebration that is contrary to his own most deeply held beliefs.”3 The Colorado Civil Rights Commission rejected these arguments and ordered the baker to “cease and desist from discriminating against . . . same-sex couples.”4 The Supreme Court reversed. While the majority opinion reiterated that states have the authority to prohibit discrimination on the basis of sexual orientation, and that religious objectors are not necessarily exempt from such prohibitions, the Court also held that the Commission failed to treat the baker’s religious claims with the degree of neutrality and respect that the Free Exercise Clause demands.5 Commentators have found the Court’s emphasis on respect and etiquette in Masterpiece Cakeshop to be problematic in a number of ways. In addition to faulting the majority for misreading the record, Leslie Kendrick and Micah Schwartzman argue that the Court “introduced various distortions” into animus doctrine and “provided insufficient guidance about the principles governing 1. 138 S. Ct. 1719 (2018). 2. See, e.g., Chad Flanders & Sean Olivera, An Incomplete Masterpiece, 66 UCLA L. REV. DISC. 154 (2019); Leslie Kendrick & Micah Schwartzman, The Etiquette of Animus, 132 HARV. L. REV. 133 (2018); Elizabeth Clark, Symposium: and the Winner Is . . . Pluralism?, SCOTUSBLOG (June 6, 2018), https://perma.cc/RJ8Y-CF9P; Robert W. Tuttle & Ira C. Lupu, Masterpiece Cakeshop—A Troublesome Application of Free Exercise Principles by a Court Determined to Avoid Hard Questions, TAKE CARE (June 7, 2018), https://perma.cc/677C-WV3J. 3. Masterpiece Cakeshop, 138 S. Ct. at 1724. 4. Id. at 1726 (quoting Brief for Petitioners at 57a, Masterpiece Cakeshop, 138 S. Ct. 1719 (2018) (No. 16-111)). 5. Id. at 1728-29. 2020] MASTERPIECE CAKESHOP AND ASHERS BAKING COMPANY 117 will be devoted to the factual and constitutional context of Ashers Baking Company, which is less familiar to American audiences. A. Factual Settings The controversy in Masterpiece Cakeshop arose in 2012, when Charlie Craig and Dave Mullins visited Jack Phillips’ bakery in Colorado, and expressed an interest in ordering a wedding cake.16 Because the state did not yet afford legal recognition to same-sex marriages performed in the state, Craig and Mullins planned to wed out of state and then return home to the Denver area to celebrate with family and friends.17 Phillips declined to provide a cake for their celebration. The record did not indicate that Craig and Mullins requested that he provide a cake of any particular design or with any specific inscription or decoration.18 Rather, the facts suggest that Phillips had a more general objection to providing the requested service: Phillips told the couple that he would provide Craig and Mullins with other baked goods, but that he would not create a cake for a same-sex wedding. Phillips subsequently explained that he believed that “to create a wedding cake for an event that celebrates something that directly goes against the teachings of the Bible, would have been a personal endorsement and participation in the ceremony and relationship that they were entering into.”19 The Ashers Baking Company dispute similarly arose out of a visit to a bakery and a request for a cake. In this case, however, the request was not made by a couple who wanted to celebrate their same-sex marriage, but by an individual who supported same-sex marriage more broadly. The customer, Mr. Lee, was a gay man who was a volunteer with QueerSpace, an organization that supported the LGBTQ community and the campaign for marriage equality in Northern Ireland.20 Although he had shopped at an Ashers bakeshop location on previous occasions, the staff and the proprietors did not know Lee personally and were not aware of his sexual orientation.21 In 2014, Lee wanted to bring a cake to a QueerSpace function to mark the end of Northern Ireland Anti-Homophobia Week.22 He stopped into an Ashers location to place an order through the shop’s “Build-a-Cake” service, which Religious Exemptions and Antidiscrimination Law in Masterpiece Cakeshop, 128 YALE L.J. FORUM 201 (2018). 16. Masterpiece Cakeshop, 138 S. Ct. at 1724. 17. Id. 18. Id. 19. Id. (quoting Brief for Petitioner at 153, Masterpiece Cakeshop, 138 S. Ct. 1719 (No. 16-111) (emphasis deleted)). 20. Lee v. Ashers Baking Co. [2018] UKSC 49 at [10] (appeal taken from N. Ir.), https://perma.cc/AV6T-GB9Y. 21. Id. at [11]. 22. Id. at [10]. 118 STANFORD JOURNAL OF CIVIL RIGHTS & CIVIL LIBERTIES [XVI:113 allowed customers to purchase baked goods decorated with particular images or inscriptions of their own design.23 Lee’s order consisted of a cake iced with a colored picture of the Sesame Street characters Ernie and Bert along with the QueerSpace logo and the words “Support Gay Marriage.”24 One of the shop’s proprietors, Mrs. McArthur, took the order without objection and accepted payment.25 Later, however, McArthur telephoned Lee to explain that she and her husband had decided to cancel Lee’s order because “they could not in conscience produce a cake with that slogan.”26 McArthur issued an apology and a refund, and Lee obtained his cake elsewhere.27 There are several important factual distinctions to be drawn between Masterpiece Cakeshop and Ashers Baking Company. One distinction involves the bakeshop owners’ perceptions about their customers’ sexual orientations. In Masterpiece Cakeshop, the Court’s recitation of the facts indicates that Craig and Mullins told Phillips that they were interested in purchasing a cake for their own wedding.28 Craig and Mullins therefore had an obvious basis for concluding that Phillips understood them to be gay. By contrast, in Ashers Baking Company, Lee did not have the same basis for concluding that the McArthurs knew that he himself was gay. He did not request a cake for his own wedding, and he did not directly communicate his sexual orientation in any other way. Again, the facts of the opinion state that “neither [the McArthurs] nor their staff knew of his sexual orientation.”29 A second set of distinctions relates to the kinds of cakes that were requested in each case, and the reasons why those requests were declined. Recall that in Masterpiece Cakeshop, Craig and Mullins never discussed the design of their cake with Phillips.30 Phillips’ refusal to accept their order apparently was not based on the design or decoration of the cake, but on its purpose: he simply would not create a cake of any description for their same- sex wedding celebration. On the other hand, in Ashers Baking Company, the McArthurs’ reasons for declining to provide Lee’s cake focused almost exclusively on the specific details of the decoration—in particular, on their conclusion the “order could not be fulfilled because they were a Christian business and could not print the slogan requested.”31 Indeed, there is some 23. Id. at [11-12]. 24. Id. at [12]. For an illustration of the requested image, see ‘Gay Cake’ Case: Ashers Baking Company Says Making Slogan Cake ‘Would Be Sinful,’ BBC NEWS (May 9, 2016), https://perma.cc/E47L-6LAM. 25. Ashers [2018] UKSC 49 at [12]. 26. Id. 27. Id. at [12, 14]. 28. Masterpiece Cakeshop, Ltd. v. Colo. Civil Rights Comm’n, 138 S. Ct. 1719, 1724 (2018). 29. Ashers [2018] UKSC 49 at [11]. 30. Masterpiece Cakeshop, 138 S. Ct. at 1724. 31. Ashers [2018] UKSC 49 at [12]. 2020] MASTERPIECE CAKESHOP AND ASHERS BAKING COMPANY 119 indication in the record that the McArthurs would have supplied the cake with the rest of Lee’s requested design if the words “Support Gay Marriage” had been omitted.32 The literal, rather than symbolic, message associated with creating a cake thus plays a more prominent role in Ashers Baking Company than it does in Masterpiece Cakeshop. B. Legal Frameworks Shortly after they were denied service at Phillips’ bakeshop, Craig and Mullins filed a complaint with the Colorado Civil Rights Division.33 The Division found probable cause that Phillips had violated the state’s anti- discrimination statute and referred the matter to the Colorado Civil Rights Commission, the subdivision charged with investigating claims of discriminatory practices.34 The Commission then referred the matter for a hearing before a state administrative law judge (ALJ), who rejected Phillips’ free speech and free exercise claims and found his actions to constitute unlawful discrimination on the basis of sexual orientation.35 The ALJ’s decision was affirmed by the Civil Rights Commission, and the Commission’s findings and enforcement orders were in turn affirmed by the Colorado Court of Appeals.36 The U.S. Supreme Court granted Phillips’ petition for review after the state’s highest court declined to hear the appeal.37 The Supreme Court framed the Masterpiece Cakeshop case as a clash between two competing principles: “the authority of a [s]tate . . . to protect the rights and dignity of gay persons who are, or wish to be, married but who face discrimination when they seek goods or services” and “the right of all persons to exercise fundamental freedoms under the First Amendment.”38 The state’s authority to protect the rights of gay people was manifested through the Colorado Anti-Discrimination Act. The Act made it unlawful to “deny to an individual or a group, because of disability, race, creed, color, sex, sexual orientation, marital status, national origin, or ancestry, the full and equal enjoyment of the goods, services, facilities, privileges, advantages, or accommodations of a place of public accommodation,” and applied to any “place of business engaged in any sales to the public.”39 The general constitutionality of statutory protections against discrimination on the basis of sexual orientation did not appear to be in serious question. The majority emphasized that “society has come to the recognition that gay persons 32. Id. at [22]. 33. Masterpiece Cakeshop, 138 S. Ct. at 1725. 34. Id. at 1726. See also COLO. REV. STAT. § 24-34-306 (2017). 35. Masterpiece Cakeshop, 138 S. Ct. at 1726. 36. Id. at 1726-27. 37. Id. at 1727. 38. Id. at 1723. 39. Id. at 1725 (quoting COLO. REV. STAT. § 24-34-601 (2017)). 122 STANFORD JOURNAL OF CIVIL RIGHTS & CIVIL LIBERTIES [XVI:113 legislative enactments, and the District Judge in the County Court in Northern Ireland found that the bakeshop’s refusal to process the order constituted direct discrimination in violation of the law.56 The Northern Ireland Court of Appeal affirmed on modified grounds,57 and the defendants sought further review in the U.K. Supreme Court, asserting that the judgments below were inconsistent with their freedoms of religion and expression.58 But while Ashers Baking Company resembles Masterpiece Cakeshop insofar as it posed an apparent clash between statutory anti-discrimination protections and constitutional religious and expressive liberties, the British legal context differs in significant ways that merit further examination and explanation. Consider first the status of Northern Ireland within the United Kingdom. Unlike Colorado, Northern Ireland is not a state that retains a certain degree of sovereignty that cannot be invaded by the national legislature in a federalist system of government;59 it is instead a region of the United Kingdom that is subject to the plenary authority of Parliament.60 However, under the system of devolution, Northern Ireland does have a local Assembly with delegated or devolved authority to legislate in some areas.61 These areas include health, education, economic development, and “equal opportunities.”62 There is also a Northern Ireland Executive Committee chaired by the First Minister and Deputy First Minister.63 The Executive Committee is empowered to issue certain regulations for the region, and in this way plays a role 56. Lee v. Ashers Baking Co. [2015] NICty 2 at [46]. 57. Lee v. Ashers Baking Co. [2016] NICA 39 at [57-58]. 58. See Lee v. Ashers Baking Co. [2018] UKSC 49 at [1]. 59. See Brigid Hadfield, The Nature of Devolution in Scotland and Northern Ireland: Key Issues of Responsibility and Control, 3 EDIN. L. REV. 3, 4 (1999) (“[B]ecause devolution is being wrought by Act of the Westminster Parliament, rather than through a written constitution, and because the legislation and government statements emphasise the retention of Westminster’s ‘sovereign powers,’ the relevant legislation cannot be regarded as introducing any ‘pure’ form of federalism.”); cf. Printz v. United States, 521 U.S. 898, 918- 19 (1997) (“Although the States surrendered many of their powers to the new Federal Government, they retained a residuary and inviolable sovereignty.”). 60. See Northern Ireland Act 1998, 1998 c. 47 § 5(6) (granting authority to local assembly to make laws but noting that “[t]his section does not affect the power of the Parliament of the United Kingdom to make laws for Northern Ireland”); see also Hadfield, supra note 59; Brigid Hadfield, The Belfast Agreement, Sovereignty and the State of the Union, 1998 PUB. L. 599 (1998). 61. See Northern Ireland Act 1998, c. 47 § 5; see also David Torrance, Introduction to Devolution in the UK, HOUSE OF COMMONS LIBRARY BRIEFING PAPER No. 8599 (June 19, 2019), https://perma.cc/D4EH-7HKL. The devolved Northern Ireland government has not been fully functioning since 2017, and so the U.K. Parliament has been legislating on behalf of Northern Ireland when necessary in the meanwhile. See David Torrance, Devolution in Northern Ireland, 1998-2018, HOUSE OF COMMONS LIBRARY BRIEFING PAPER No. 08439 (Nov. 19, 2018), https://perma.cc/E34B-US7F [hereinafter Torrance, Devolution in Northern Ireland]. 62. See Torrance, Devolution in Northern Ireland, supra note 61, at 6. 63. See Northern Ireland Act 1998, c. 47 § 20; see also Torrance, Devolution in Northern Ireland, supra note 61, at 9-10. 2020] MASTERPIECE CAKESHOP AND ASHERS BAKING COMPANY 123 analogous to that played by administrative agencies and commissions in the United States. For example, the Colorado Civil Rights Commission is authorized by state legislation to “adopt, publish, amend, and rescind rules . . . that are consistent with and for the implementation of” anti-discrimination laws.64 Likewise, the Northern Ireland Executive Committee is authorized by Parliamentary legislation to issue regulations to “make provision about discrimination or harassment on grounds of sexual orientation.”65 Lawmaking by the Northern Ireland Assembly and Executive Committee may be complemented by Acts of Parliament or by Orders in Council.66 The latter form of lawmaking consists of orders issued “by and with the advice of Her Majesty’s Privy Council” pursuant to an authorizing statute.67 In less majestic language, Orders in Council are a form of secondary legislation prepared by the office of the government minister responsible for the subject matter in question, which may be subject to approval in draft form by Parliament prior to taking effect.68 As will be seen, regulations issued by the Northern Ireland Executive and Orders in Council both play an important role in the Ashers Baking Company litigation. Now consider the scope of the legislative frameworks against discrimination in the two cases. The applicable laws in Colorado and in Northern Ireland both included statutory prohibitions against discrimination of the basis of sexual orientation. The Colorado provisions appear in the state’s Anti-Discrimination Act discussed above, and the Northern Ireland provisions are set forth in Sexual Orientation Regulations issued by the Office of the First Minister pursuant to the U.K.’s Equality Act of 2006.69 These regulations broadly define direct discrimination to include situations in which, “on the grounds of sexual orientation, A treats B less favourably than he treats or would treat other persons.”70 The regulations go on to specifically declare it “unlawful for any person concerned with the provision . . . of goods, facilities or services to the public . . . to discriminate against a person who seeks to obtain or use those goods, facilities or services by refusing or deliberately omitting to 64. COLO. REV. STAT. § 24-34-305(1)(a) (2017). 65. See Equality Act 2006, c. 3 § 82. 66. See Northern Ireland Act 1998, c. 47 §§ 5, 84-86; see also Torrance, Devolution in Northern Ireland, supra note 61, at 5, 15, 21. 67. Richard Kelly, Statutory Instruments, HOUSE OF COMMONS LIBRARY BRIEFING PAPER NO. 06509 at 22 (Dec. 15, 2016), https://perma.cc/YCP7-96MP. See also Stephanie Pywell, Something Old, Something New: Busting Some Myths About Statutory Instruments and Brexit, 2019 PUB. L. 102 (2019) (analyzing Orders in Council and comparing them to other forms of statutory instruments). 68. See National Archives, Statutory Instrument Practice 1.4.9 (5th ed. 2017); Kelly, supra note 67, at 4. 69. See Equality Act (Sexual Orientation) Regulations (NI) 2006, No. 439. See also Lee v. Ashers Baking Co. [2018] UKSC 49 at [3, 20]. 70. Equality Act (Sexual Orientation) Regulations (NI) 2006 at 3(1). See also Ashers [2018] UKSC 49 at [20]. 124 STANFORD JOURNAL OF CIVIL RIGHTS & CIVIL LIBERTIES [XVI:113 provide him with any of them.”71 Like the Anti-Discrimination Act at issue in Masterpiece Cakeshop, the Sexual Orientation Regulations in Ashers Baking Company operated in a context in which protection for same-sex marriage was limited in the relevant jurisdiction when the case arose. Although Parliament legalized same-sex civil partnerships throughout the United Kingdom in 2004,72 legalization of same- sex marriage has proceeded more slowly. Marriage equality was achieved in England and Wales in 201373 and in Scotland in 2014,74 but remains highly contested and as yet unrealized in Northern Ireland.75 The Northern Ireland Assembly had debated the issue three times in a span of eighteen months and had narrowly voted down a motion in favor of legalization only a week before Lee’s visit to the McArthurs’ bakeshop.76 While the contemporary legal and political debate surrounding same-sex marriage suggests a commonality between Masterpiece Cakeshop and Ashers Baking Company, it also highlights an important difference in the statutory context for the two cases. Whereas the law in Colorado prohibited discrimination on the basis of such characteristics as disability, race, creed sex, and sexual orientation,77 the law in Northern Ireland went further in at least one respect: an Order issued by Her Majesty in Council prohibited discrimination in the provision of goods or services on the basis of political opinion.78 In light of the controversy surrounding marital equality in Northern Ireland, it was no surprise that both the district court and the U.K. Supreme Court saw “no reason 71. Equality Act (Sexual Orientation) Regulations (NI) 2006 at 5(1) (formatting omitted). See also Ashers [2018] UKSC 49 at [20]. 72. See Civil Partnership Act 2004, c. 33. For a comparative overview of the different paths taken toward legalization of same-sex marriage in the United Kingdom and the United States, see René Reyes, The Mixed Blessings of (Non-) Establishment, 80 ALB. L. REV. 405, 421-22 (2016). 73. See Marriage (Same Sex Couples) Act 2013, c. 30. 74. See Marriage and Civil Partnership (Scotland) Act 2014, 2014 asp 5. 75. Peter Walker, Government Pressed on Same-Sex Marriage for Northern Ireland, GUARDIAN (July 18, 2018), https://perma.cc/XB28-XFH2; Eve Rosato, NI Same-Sex Couples Marry in Ireland and Great Britain, BBC NEWS (June 4, 2018), https://perma.cc/Q6BZ- 3D96. In July 2019, the U.K. House of Commons passed a measure requiring the government to legalize same-sex marriage and expand abortion rights in Northern Ireland if the local devolved assembly (which has not been functioning since 2017) was not restored by October 21. See Peter Walker, No. 10 Vows to Deliver on Landmark Northern Ireland Votes, GUARDIAN (July 10, 2019), https://perma.cc/86JK-M3DM; Jayne McCormack, What Does Vote on Northern Ireland Bill Mean?, BBC NEWS (July 10, 2019), https://perma.cc/ZY7C-P6GT. For further discussion of the circumstances surrounding the interruption in the functioning of the Northern Ireland Assembly, see Torrance, Devolution in Northern Ireland, supra note 61, at 29-34. 76. Lee v. Ashers Baking Co. [2018] UKSC 49 at [10, 41] (appeal taken from N. Ir.), https://perma.cc/6SGN-QQB7. 77. See supra note 39 and accompanying text. 78. Fair Employment and Treatment (Northern Ireland) Order 1998, 1998 No. 3162 (NI 21). See also Ashers [2018] UKSC 49 at [3, 39]. 2020] MASTERPIECE CAKESHOP AND ASHERS BAKING COMPANY 127 words, the local provisions protecting Lee from private discrimination on the basis of his sexual orientation and political opinions were arguably trumped as a constitutional matter by Parliamentary provisions protecting the McArthurs from discrimination on the basis of their own religious and political beliefs. A second source of constitutional protection for the McArthurs’ religious commitments and political opinions was the Human Rights Act of 1998.96 The U.K. Parliament adopted the Human Rights Act in order “to give further effect to rights and freedoms guaranteed under the European Convention on Human Rights,”97 which include freedoms of thought, conscience, religion, and expression.98 In Ashers Baking Company, the Supreme Court noted that these Convention freedoms “permit[] limitations on the freedom to manifest one’s religion or beliefs but not on the freedom to hold them,”99 and further noted that “obliging a person to manifest a belief which he does not hold has been held to be a limitation on his . . . rights.”100 These observations may be reminiscent of some of the legal doctrines applicable in Masterpiece Cakeshop—for in both cases, the governing constitutional law makes distinctions between action and belief in the context of religion,101 and also guards against compelled manifestation of opinion in the context of political expression.102 But once more, there are also important differences in the constitutional principles at play. The Human Rights Act and the European Convention do not limit Parliament to the same degree that the First Amendment limits U.S. lawmakers; Parliament retains its sovereign power to legislate in a manner that is incompatible with the Convention. Indeed, the Act itself provides that a judicial declaration that primary legislation is incompatible with Convention rights “does not affect the validity, continuing operation or enforcement of the provision in respect of which it is given, and is not binding on the parties to the proceeding[] in which it is made.”103 However, this does not mean that the Convention rights lack importance. A declaration that legislation is 96. 1998 c. 42. 97. Id. at Preamble. 98. See Ashers [2018] UKSC 49 at [49-52]; see also European Convention for the Protection of Human Rights and Fundamental Freedoms arts. 9-10, Nov. 4, 1950, 213 U.N.T.S. 221. 99. Ashers [2018] UKSC 49 at [49]. 100. Id. at [50]. 101. See discussion of U.S. free exercise doctrine supra notes 45-48 and accompanying text. 102. See discussion of U.S. compelled speech doctrine supra notes 49-53 and accompanying text. 103. Human Rights Act 1998 c. 42 § 4(6). See also, e.g., Neil Duxbury, Reading Down, 20 GREEN BAG 2D 155, 161 (2017) (“Parliament is under no duty to enact remedying legislation in response to a finding of incompatibility, and, in the case at hand, the court issuing the declaration will still have to apply the reprobate statute on its plain meaning.”); Dominic McGoldrick, The United Kingdom’s Human Rights Act 1998 in Theory and Practice, 50 INT’L & COMP. L.Q. 901, 920 (2001) (noting that the Act “does not give the courts the power to strike down primary legislation”). 128 STANFORD JOURNAL OF CIVIL RIGHTS & CIVIL LIBERTIES [XVI:113 incompatible with Convention rights may well put political pressure on the government to revise the law in question.104 In addition, the Act provides that “[s]o far as it is possible to do so, primary legislation and subordinate legislation must be read and given effect in a way which is compatible with the Convention rights.”105 The process of interpreting legislation in this manner is known as “reading down.”106 This interpretive method effectively creates a “presumption of compatibility,”107 and “allows the court to bring legislation into conformity with the Convention . . . by adopting a narrow or modified interpretation.”108 Bringing these principles together, the inquiry before the U.K. Supreme Court in Ashers Baking Company was thus at least threefold.109 One question was whether Lee was the victim of discrimination on the basis of sexual orientation or political opinion under the applicable Northern Ireland orders and regulations. If so, then a subsequent question was whether those orders and regulations were incompatible with constitutional protections for freedom of religious and political belief afforded to the McArthurs under Parliamentary legislation governing Northern Ireland or under the European Convention on Human Rights. A related question was whether any such incompatibility could be avoided by reading down the legislation invoked by Lee—that is, by interpreting the legislation in a narrow manner that would not result in the imposition of civil liability against the McArthurs under the facts of the case at hand. The ways in which the U.K. Supreme Court analyzed those questions in Ashers Baking Company—and the ways in which that analysis differed from the approach taken by the U.S. Supreme Court in Masterpiece Cakeshop—are discussed in the next Part. II. OPINIONS OF MANY LAYERS The opinions in Masterpiece Cakeshop and Ashers Baking Company are constitutional confections of many layers. Each case arose in a unique context, but both involved overlapping issues of discrimination, religious exercise, and speech. This Part cuts through the layers of each Court’s analysis and compares their respective treatments of these issues. The U.S. and U.K. Supreme Courts both sought to strike a balance between freedom from discrimination on the one hand and freedoms of religion and expression on the other—but the British high court did so in language that casts fewer doubts on the viability of 104. See McGoldrick, supra note 103, at 924. 105. Human Rights Act 1998, c. 42 § 3(1). 106. See, e.g., Duxbury, supra note 103; Richard A. Edwards, Reading Down Legislation Under the Human Rights Act, 20 LEGAL STUD. 353 (2000). 107. Edwards, supra note 106, at 355. 108. Id. at 356. 109. See Lee v. Ashers Baking Co. [2018] UKSC 49 at [1, 40] (appeal taken from N. Ir.), https://perma.cc/8PTL-426N. 2020] MASTERPIECE CAKESHOP AND ASHERS BAKING COMPANY 129 statutory efforts to assure equal treatment for LGBTQ persons in markets for goods and services and in other places of public accommodation. A. Masterpiece Cakeshop Beginning with the issue of discrimination, the Colorado tribunals found that Phillips’ refusal to make a cake for Craig and Mullins amounted to discrimination on the basis of sexual orientation.110 The U.S. Supreme Court did not directly disturb this finding on appeal. To be sure, the Court did note that there was disagreement among the parties as to the scope of Phillips’ unwillingness to serve Craig and Mullins,111 and suggested that a baker’s refusal to “create” a cake for same-sex weddings might be legally different than a categorical refusal to provide any goods at all for such events.112 These observations could possibly be read to imply that further facts about Phillips’ business practices would be necessary before a finding of discrimination on the basis of sexual orientation would be in order.113 Nevertheless, the Court did not so hold, and did not rest its judgment in Phillips’ favor on that ground. The Court instead rooted its judgment in the Free Exercise Clause and notions of religious respect and neutrality. This focus on free exercise doctrine was somewhat surprising, given the emphasis placed on other arguments in the parties’ briefs and the challenges associated with claiming a religious exemption from generally applicable laws.114 But even when ruling in Phillips’ favor under the Free Exercise Clause, the majority did not go so far as to hold that the baker was entitled to an exemption from the state’s Anti- Discrimination Act. Rather, the Court held that Phillips was entitled to a “neutral and respectful consideration of his claims in all the circumstances of the case,”115 and that the Colorado Civil Rights Commission was correspondingly “obliged under the Free Exercise Clause to proceed in a manner neutral toward and tolerant of Phillips’ religious beliefs.”116 On the Court’s reading of the facts, the Commission failed to meet this obligation. Specifically, the Court found evidence of hostility toward Phillips’ religious beliefs in comments by several commissioners during public hearings on the case. One commissioner expressed the view that the baker was entitled to his beliefs, but “if a businessman wants to do business in the state and he’s 110. See Masterpiece Cakeshop v. Colo. Civil Rights Comm’n, 138 S. Ct. 1719, 1726- 27 (2018). 111. See id. at 1723. 112. See id. at 1728. 113. Phillips had argued to the Colorado Administrative Law Judge his conduct did not amount to discrimination on the basis of sexual orientation, but rather to opposition to same- sex marriage. See id. at 1726. 114. See supra notes 45-49 and accompanying text. 115. Masterpiece Cakeshop, 138 S. Ct. at 1729. 116. Id. at 1731. 132 STANFORD JOURNAL OF CIVIL RIGHTS & CIVIL LIBERTIES [XVI:113 does not engage with it in significant detail, other than to note that the Commission’s treatment of other cases in which bakers refused to create cakes with words and images disapproving of same-sex marriage “could reasonably be interpreted as being inconsistent as to the question of whether speech is involved, quite apart from whether the cases should ultimately be distinguished.”135 But while the Free Speech Clause does not play a significant role in the majority opinion, it features much more prominently in Justice Thomas’s concurrence. Justice Thomas noted that Phillips considers himself an artist, and highlighted the steps that Phillips takes during the process of creating a wedding cake.136 He further noted Phillips’ belief that wedding cakes are inherently communicative of a message of celebration, and maintained that such cakes “do, in fact, communicate this message,”137 asserting that “[i]f an average person walked into a room and saw a white, multi-tiered cake, he would immediately know that he had stumbled upon a wedding.”138 The creation of a wedding cake was therefore expressive conduct that was entitled to constitutional protection.139 In Justice Thomas’s view, to require Phillips to create wedding cakes for same-sex marriages would require him to suggest that those marriages should be celebrated and to “affirm a belief with which he disagrees” in violation of free speech principles.140 There are several questions and objections that could be raised in response to Justice Thomas’s free speech argument. For one, even if it were true that traditional wedding cakes communicate a message of celebration by the couple, it does not follow that such cakes communicate a message of celebration by the baker.141 For another, the record did not indicate that Craig and Mullins requested a classic white, multi-tiered cake of the sort that Justice Thomas deems so communicative of a message of celebration—instead, the facts state that Phillips declined to provide them with a wedding cake before any design was ever discussed.142 Further, as noted by Justice Ginsburg in her dissent, “Phillips point[ed] to no case in which this Court has suggested the provision of a baked good might be expressive conduct.”143 Despite these counterarguments and the fact that Justice Thomas was 135. Id. at 1730. 136. Id. at 1742 (Thomas, J., concurring in part and concurring in the judgment). 137. Id. at 1743. 138. Id. 139. See id. at 1742-44. 140. Id. at 1744 (citing Hurley v. Irish-American Gay, Lesbian and Bisexual Grp. of Bos., Inc., 515 U.S. 557, 574 (1995)). 141. See id. at 1748 n.1 (Ginsburg, J., dissenting) (“Phillips submitted no evidence showing that an objective observer understands a wedding cake to convey a message, much less that the observer understands the message to be the baker’s, rather than the marrying couple’s.”). 142. See id. at 1724 (majority opinion). 143. Id. at 1748 n.1 (Ginsburg, J., dissenting). 2020] MASTERPIECE CAKESHOP AND ASHERS BAKING COMPANY 133 joined only by Justice Gorsuch on the compelled speech point,144 this line of analysis may gain more traction in the wake of Justice Kennedy’s departure. The potential consequences associated with classifying the provision of goods and services to same-sex couples as protected speech are far-reaching. As framed by Leslie Kendrick and Micah Schwartzman, “[e]xtending free speech in this way threatens to undo longstanding settlements—to reopen the Supreme Court’s definitive rejection of constitutional challenges to civil rights laws in the 1960s and to revive the deregulatory project of the Lochner era under the guise of the First Amendment.”145 The uncertainty surrounding these questions is all the more significant given that controversies involving religious refusals by vendors to serve LGBTQ customers continue to come before the courts. The facts of some of these cases are remarkably similar to the facts of Masterpiece Cakeshop. In one case, for example, a bakery in Oregon declined to provide a wedding cake to a same-sex couple on religious grounds.146 The state Bureau of Labor and Industries found that the bakery’s refusal constituted a violation of an Oregon public accommodations statute prohibiting discrimination on the basis of sexual orientation, and the state Court of Appeals affirmed. In another case, a florist raised religious objections to selling flowers for a same-sex wedding.147 The state of Washington brought a complaint alleging discrimination on the basis of sexual orientation, which was granted and upheld by the state’s courts. The U.S. Supreme Court granted certiorari in both cases, but did little to clarify the issues; it simply remanded the cases “for further consideration in light of Masterpiece Cakeshop.”148 And in another case involving the Masterpiece Cakeshop bakery itself, the Colorado Civil Rights Division found that Phillips violated the state’s anti-discrimination law after he refused to fulfill a request for a cake with a blue exterior and a pink interior to celebrate a gender transition.149 The parties ultimately agreed to terminate the dispute, with Colorado ending its administrative action and Phillips voluntarily dismissing his complaint against the state. Doctrinal ambiguities seemed to play a role in the parties’ decisions: the Colorado Attorney General explained that “both sides agreed it was not in anyone’s best interest to move forward with these cases,” and that while “[t]he larger constitutional issues might well be decided down the road . . . these cases will not be the vehicle for resolving them.”150 144. See id. at 1740 (Gorsuch, J., concurring). 145. Kendrick & Schwartzman, supra note 2, at 164. 146. See Klein v. Or. Bureau of Labor & Indus., 410 P.3d 1051, 1057 (Or. Ct. App. 2017). 147. See Washington v. Arlene’s Flowers, Inc., 389 P.3d 543, 549 (Wash. 2017). 148. Klein v. Or. Bureau of Labor & Indus., 139 S. Ct. 2713 (2019) (mem.); Arlene’s Flowers, Inc. v. Washington, 138 S. Ct. 2671 (2018) (mem.). 149. See First Amended Verified Complaint at 7, Masterpiece Cakeshop v. Elenis, No. 1:18-cv-02074-WYD-STV, 2018 WL 8265747 (D. Colo. Oct. 23, 2018). 150. COLO. ATT’Y GEN., News Release, State of Colorado and Masterpiece Cakeshop 134 STANFORD JOURNAL OF CIVIL RIGHTS & CIVIL LIBERTIES [XVI:113 The constitutional questions posed by these cases therefore persist. Justice Kennedy previously opined that “[l]iberty finds no refuge in a jurisprudence of doubt,”151 yet neither his opinion in Masterpiece Cakeshop nor subsequent decisions by his colleagues on the Court have provided clear guidance for judges and litigants to follow. So how are these questions to be resolved? The U.K. Supreme Court’s decision in Ashers Baking Company may offer some answers. B. Ashers Baking Company The analysis in Ashers Baking Company begins with the issue of discrimination based on sexual orientation. As was the case in Masterpiece Cakeshop, the lower courts in Ashers Baking Company determined that the bakeshop had engaged in discrimination on the basis of sexual orientation in violation of locally applicable legislation.152 But whereas the U.S. Supreme Court merely raised questions about that determination based on the record before it, the U.K. Supreme Court expressly reversed.153 The Court acknowledged that “[i]t is deeply humiliating, and an affront to human dignity, to deny someone a service because of that person’s race, gender, disability, sexual orientation or any of the other protected personal characteristics.”154 Nevertheless, the Court went on to conclude that such a denial of service “is not what happened in this case and it does the project of equal treatment no favours to seek to extend it beyond its proper scope.”155 At first glance, this holding may strike advocates of anti-discrimination as deeply troubling—perhaps even more so than some elements of Masterpiece Cakeshop, inasmuch as the British court directly rejected the sort of claim that was only indirectly questioned by the American court. But on closer examination, the U.K. Supreme Court’s rejection of the sexual orientation claim need not be understood as a major blow against equality. The Court did not hold that religiously-motivated discrimination on the basis of sexual orientation was outside the scope of the relevant legislation, nor did it hold that religious objectors were entitled to an exemption from anti-discrimination laws when dealing with LGBTQ patrons. In other words, there was no parallel to Justice Gorsuch’s suggestion that refusing to grant such exemptions to religious objectors was constitutionally “controversial.” In addition, the Court took care to note that neither the McArthurs nor their staff at the bakeshop knew of Lee’s Agree to End All Litigation (Mar. 5, 2015), https://perma.cc/V479-U3V6. 151. Planned Parenthood of Southeastern Pa. v. Casey, 505 U.S. 833, 844 (1992) (joint opinion of O’Connor, Kennedy, and Souter, JJ.). 152. See Lee v. Ashers Baking Co. [2018] UKSC 49 at [15] (appeal taken from N. Ir.), https://perma.cc/G3S7-HKWL. 153. See id. at [34-35]. 154. Id. at [35]. 155. Id. 2020] MASTERPIECE CAKESHOP AND ASHERS BAKING COMPANY 137 differently because of what he believed, not just because of what the McArthurs believed. The Court then held that since there appeared to have been no evidence introduced concerning Lee’s own beliefs, the religious discrimination claim could not stand.174 The political opinion element of the claim was more complex. On this issue, the Court agreed with the district judge that support for same-sex marriage qualified as a political opinion under the applicable legislation.175 The Court further agreed that the McArthurs were clearly in a position to know about Lee’s political opinion in this regard, given the nature of the message he had requested on the cake.176 And it was because of their disagreement with that message that the McArthurs declined to complete the order as requested. But once again, the Court indicated that this disagreement did not necessarily amount to discrimination against Lee personally. “The objection was not to Mr Lee because he, or anyone with whom he associated, held a political opinion supporting gay marriage. The objection was to being required to promote the message on the cake.”177 However, the Court did not rest its analysis entirely on this point. The Court went on to consider the argument that in this particular context, there was such a close “association between the political opinions of the man and the message that he wishes to promote . . . that they are ‘indissociable’ for the purpose of direct discrimination on the ground of political opinion.”178 Under this reading of the facts and the law, discrimination against a political position might amount to discrimination against a person for purposes of the legislation. The Court accordingly found it appropriate to consider the applicability of the McArthurs’ European Convention rights to Lee’s political discrimination claim.179 The Court noted that the rights of conscience and expression protected under the Convention encompass not only the freedom to believe, but also the freedom not to believe.180 This latter freedom includes the right not to be compelled to manifest a belief one does not hold.181 This is a clear parallel to the compelled speech claim raised in Masterpiece Cakeshop. Indeed, the U.K. Supreme Court acknowledged the argument that compelled speech doctrine was primarily developed in U.S. cases interpreting the First Amendment.182 But despite the American origins of the doctrine and the absence of the legal 174. See id. at [46]. 175. Id. at [41]. 176. Id. at [46]. 177. Id. at [47]. 178. Id. at [48]. 179. Id. 180. Id. at [49]. 181. Id. at [50-52]. 182. Id. at [53]. 138 STANFORD JOURNAL OF CIVIL RIGHTS & CIVIL LIBERTIES [XVI:113 equivalent of the First Amendment in U.K. constitutional law,183 the Court cited British and European cases that reflected a similar commitment against coerced expression.184 It therefore could not “seriously be suggested that the same principles do not apply in the context . . . of the Convention.”185 Applying these principles to Lee’s political discrimination claim, the Court rejected the lower courts’ conclusion that the McArthurs were not being required to manifest support for a political position with which they disagreed. The Court of Appeal had suggested that providing the cake as ordered would not indicate support for same-sex marriage, just as “provid[ing] a cake for a particular team or portray[ing] witches on a Halloween cake does not indicate any support for either.”186 But the U.K. Supreme Court noted that being required to promote a cause and being associated with it were actually two separate issues. While the McArthurs may indeed have been concerned that members of the public would see their logo on the outside of the box and conclude that they supported the cause inscribed on the cake within, this was not the relevant questions—for “there is no requirement that the person who is compelled to speak can only complain if he is thought by others to support the message.”187 Instead, the determinative point was that “the bakery was required, on pain of liability in damages, to supply a product which actively promoted the cause, a cause in which many believe, but . . . in which the owners most definitely and sincerely did not.”188 The Court chose to read down the applicable legislation to avoid this outcome. It concluded that the Fair Employment Treatment Order “should not be read or given effect in such a way as to compel providers of goods, facilities and services to express a message with which they disagree, unless justification is shown for doing so.”189 Here, too, this conclusion may initially seem troubling to advocates of marriage equality and LGBTQ rights more broadly. The Court’s reasoning may even appear to be of a piece with Justice Thomas’ concurrence in Masterpiece Cakeshop, insofar as both suggest that requiring the bakers to create the specific cakes as requested by their respective customers would run afoul of compelled speech principles. But once more, a closer reading of the U.K. Supreme Court’s opinion reveals important limiting principles that should allay concerns about the scope of its holding. First, the Court consistently placed considerable emphasis on the fact that the requested cake literally expressed the message “Support Gay Marriage.” The Court was unambiguous in stating that the right to refuse service in these circumstances did not amount to a general 183. See supra note 80 and accompanying text. 184. Ashers [2018] UKSC 49 at [50-52]. 185. Id. at [53]. 186. Id. at [54] (quoting Lee v. Ashers Baking Co. [2016] NICA 39 at [67] (appeal taken from district court ruling), https://perma.cc/P4K3-BCHR. 187. Id. 188. Id. 189. Id. at [56]. 2020] MASTERPIECE CAKESHOP AND ASHERS BAKING COMPANY 139 right to refuse service to LGBTQ patrons, but was rather a narrow exception: It is, of course, the case that businesses offering services to the public are not entitled to discriminate on certain grounds. The bakery could not refuse to provide a cake—or any other of their products—to Mr. Lee because he was a gay man or because he supported gay marriage. But that important fact does not amount to a justification for something completely different—obliging them to supply a cake iced with a message with which they profoundly disagreed.190 The literal, rather than symbolic, act of expressing support for same-sex marriage was thus essential to the Court’s analysis and holding. It is not sufficient that a product will be used at an event or ceremony of which the supplier does not approve; the fact that others might assume that the purveyor supports the cause is merely “by the way”191 and does not by itself establish a violation of compelled speech doctrine. In sum, cake craft alone is not compelled speech. Second, the U.K. Supreme Court expressly distinguished Ashers Baking Company from Masterpiece Cakeshop, and highlighted the differences in the facts and holdings. The Court emphasized that there was “nothing in the reported facts [of Masterpiece Cakeshop] to suggest that the couple wanted a particular message or decoration on their cake.”192 Since it was the particular inscribed message that justified the exemption under compelled speech doctrine in Ashers Baking Company, the implication is that no such exemption would have been available on compelled speech grounds if the British Court’s analysis had been applied in the American case. The Court went so far as to make this implication explicit by concluding that the “important message from the Masterpiece Bakery [sic] case is that there is a clear distinction between refusing to produce a cake conveying a particular message, for any customer who wants such a cake, and refusing to produce a cake for the particular customer who wants it because of that customer’s characteristics.”193 The U.K. Supreme Court’s analysis in Ashers Baking Company thus goes a long way toward resolving the ambiguities and unanswered questions raised by the U.S. Supreme Court Justices’ opinions in Masterpiece Cakeshop. The British Court’s opinion demonstrates that compelled speech doctrine can strike a balance between protecting the rights of individuals not to literally express a message with which they disagree, and the rights of LGBTQ and other persons to be free from discrimination in the marketplace for goods and services. It further demonstrates that the religious and expressive freedoms of business owners can be respected without undermining anti-discrimination and civil rights legislation protecting politically vulnerable groups and individuals. The next Part argues that constitutional conversations between the U.S. and the 190. Id. at [55]. 191. Id. at [54]. 192. Id. at [59]. 193. Id. at [62]. 142 STANFORD JOURNAL OF CIVIL RIGHTS & CIVIL LIBERTIES [XVI:113 A second prominent example is Justice Kennedy’s majority opinion in Roper v. Simmons.205 There, the Court held that the Eighth Amendment’s bar against “cruel and unusual punishments”206 prohibited the imposition of the death penalty upon an individual who was younger than 18 years of age at the time that they committed their offense.207 The majority found confirmation for this holding “in the stark reality that the United States is the only country in the world that continues to give official sanction to the juvenile death penalty.”208 The Court also found it “instructive” that the United Kingdom abolished the juvenile death penalty several decades ago, and noted the “historic ties between our countries.”209 Justice Kennedy emphasized that these international practices and attitudes did not control the outcome in the instant case, and that “the task of interpreting the Eight Amendment remains [the Court’s] responsibility.”210 Yet the majority opinion’s reference to foreign law even for instructive purposes once again elicited strong opposition. Justice Scalia lamented the role that “the views of other countries and the so-called international community”211 played in the Court’s analysis, and contended that “the basic premise of the Court’s argument—that American law should conform to the laws of the rest of the world—ought to be rejected out of hand.”212 Justice Scalia raised particular objection to the majority’s references to practices in the United Kingdom. In his view, such references were “indefensible” insofar as the U.K. “has developed, in the centuries since the Revolutionary War . . . a legal, political, and social culture quite different from our own.”213 To be sure, there are some ways in which the American constitutional order has developed out of self-conscious efforts to depart from the British model of government.214 At a broad level, the Framers drafted a written constitution with enumerated governmental powers in a break from the British tradition of an uncodified constitution.215 This document called for an elected president instead of a hereditary monarch,216 and Federalist voices in the ST. L.J. 1283 (2004) (arguing that much of the Court’s reliance on foreign law is without constitutional justification). 205. 543 U.S. 551 (2005). 206. U.S. CONST. amend. VIII. 207. See Roper, 543 U.S. at 578 (“The Eighth and Fourteenth Amendments forbid imposition of the death penalty on offenders who were under the age of 18 when their crimes were committed.”). 208. Id. at 575. 209. Id. at 577. 210. Id. at 575. 211. Id. at 622 (Scalia, J., dissenting). 212. Id. at 624. 213. Id. at 626-27. 214. See Reyes, supra note 86, at 1-2. 215. See discussion of the U.K.’s uncodified constitution supra notes 80-82 and accompanying text. 216. See U.S. CONST. ART. II. 2020] MASTERPIECE CAKESHOP AND ASHERS BAKING COMPANY 143 ratification debates emphasized the ways in which the President of the United States would be less powerful than the King of England.217 In a like vein, the Framers opted for an upper legislative chamber of Senators rather than Lords.218 Some Federalist proponents of the Constitution again highlighted the differences between the American and British institutions, with the latter being described as “an hereditary assembly of opulent nobles.”219 Certain provisions of the Bill of Rights were also said to reflect breaks from existing models with regard to individual liberties. The First Amendment’s Religion Clauses, for instance, were described by Thomas Jefferson as a “novel experiment” in religious freedom compared to prevailing European approaches that tended to assume that some form of Christianity should be established and defended by the state.220 But these American innovations in constitutional structure and liberties should not be overstated. As noted above, the United Kingdom has long afforded constitutional protection for religious freedom to a degree that is comparable to the United States—and in some respects, the British approach may even go further than the American Establishment Clause in separating church and state.221 More generally, “[c]oncepts like liberty, equality, and privacy are not exclusively American constitutional ideas but, rather, part and parcel of the global human rights movement.”222 Further, as has been amply documented by Steven Calabresi and others, there is a long history of engagement with foreign and international law in Supreme Court decisions.223 Vicki Jackson, for example, has noted that “references to foreign and international sources occur episodically in constitutional decisions throughout the Court’s history,”224 while Harold Koh has argued that since the early days of the Republic, “American courts regularly took judicial notice of both 217. See, e.g., THE FEDERALIST NOS. 67, 69 (Alexander Hamilton); Laurent Sacharoff, Former Presidents and Executive Privilege, 88 TEX. L. REV. 301, 323-28 (2009) (discussing emphasis on rejection of monarchy during ratification debates); Curtis A. Bradley & Martin S. Flaherty, Executive Power Essentialism and Foreign Affairs, 102 MICH. L. REV. 545, 602 (2004) (highlighting arguments in the Federalist Papers that the president would be less powerful than a monarch). 218. U.S. CONST. ART. I. 219. THE FEDERALIST NO. 63 (James Madison); cf. Terry Smith, Rediscovering the Sovereignty of the People: The Case for Senate Districts, 75 N.C. L. REV. 1, 23 (noting that others in the founding era “believed that the Senate should emulate the House of Lords”). 220. John Witte, Jr., The Essential Rights and Liberties of Religion in the American Constitutional Experiment, 71 NOTRE DAME L. REV. 371, 372 (1996). See also Reyes, supra note 72, at 425. 221. See supra notes 88-90 and accompanying text. 222. Harold Hongju Koh, International Law as Part of Our Law, 98 AM. J. INT’L L. 43, 54 (2004). 223. See Calabresi, supra note 198; Calabresi & Zimdahl, supra note 199. 224. Vicki C. Jackson, Constitutional Comparisons: Convergence, Resistance, Engagement, 119 HARV. L. REV. 109, 110 (2005). 144 STANFORD JOURNAL OF CIVIL RIGHTS & CIVIL LIBERTIES [XVI:113 international law and foreign law . . . when construing American law.”225 And even critics like Justice Scalia have written or joined opinions that make reference to foreign law when it supports their positions.226 In his Roper dissent, Justice Scalia conceded that “[i]t is of course true that we share a common history with the United Kingdom, and that we often consult English sources when asked to discern the meaning of a constitutional text written against the backdrop of 18th-century English law and legal thought.”227 Justice Scalia likewise made several references to English law when offering his interpretation of the Second Amendment in District of Columbia v. Heller.228 His opinion for the Court included discussions of the Stuart monarchy and the English Bill of Rights,229 which he drew upon to support the conclusion that the Second Amendment was meant to codify “a right inherited from our English ancestors.”230 Nor have such references been limited to attempts to determine the original meaning of U.S. constitutional provisions. For example, when considering the question of whether a ban on anonymous pamphleteering enhanced democratic elections, Justice Scalia made comparisons to the practices in Australia, Canada, and England, and suggested that the practices in these countries was a relevant factor in assessing the strength of the Court’s analysis.231 Finally, Justice Scalia joined the Court’s opinion holding that there was no constitutional right to physician-assisted suicide in Washington v. Glucksberg.232 This opinion noted that “in almost every western democracy . . . it is a crime to assist a suicide,”233 and drew support for its analysis from a study on euthanasia practices in the Netherlands.234 Despite these references to contemporary practices in other countries, Justice Scalia did not write separately to express any disagreement with the majority’s analysis.235 It is unclear how receptive the current U.S. Supreme Court will be to foreign and international constitutional conversations. On the one hand, Justice 225. Koh, supra note 222, at 45. 226. See id. at 47 (“Scalia himself has been far from consistent in insisting upon the irrelevance of foreign and international law.”). 227. Roper v. Simmons, 543 U.S. 551, 626 (2005) (Scalia, J., dissenting). 228. 554 U.S. 570 (2008) (holding that the Second Amendment includes an individual right to bear arms unconnected to service in a militia). 229. See id. at 592-94. 230. Id. at 599 (quoting Robertson v. Baldwin, 165 U.S. 275, 281 (1897)). 231. McIntyre v. Ohio Elections Comm’n, 514 U.S. 334, 381-82 (1995) (Scalia, J., dissenting) (disagreeing with Court’s holding that statute prohibiting distribution of anonymous campaign literature violated First Amendment). 232. 521 U.S. 702 (1997). 233. Id. at 710. 234. Id. at 734-35. 235. Justice Scalia subsequently explained that he has “no problem with reciting such interesting background, so long as the laws of those countries are not asserted to be relevant to the interpretation of our Constitution.” Justice Antonin Scalia, Keynote Address: Foreign Legal Authority in the Federal Courts, 98 AM. SOC’Y INT’L L. PROC. 305, 307 (2004).