Masterpiece Cakeshop and the Foundations of Free Speech and Toleration

Abstract

What do Masterpiece Cakeshop, Ltd v Colorado Civil Rights Commission, other leading cases from the USA, Canada, and the UK, and Teresa Bejan’s concept of ‘mere civility’, teach us about free speech and toleration? This article seeks to answer that question and suggest a path forward that allows people with deep disagreements about fundamental social and moral issues to live peaceably together despite their differences. This article defends two primary claims: First, ‘mere civility’ is complimentary to a broader legal argument for protecting the freedom of all members of a society to espouse and live out their views within the context of the public square and marketplace; and Second, compelling speech (or agreement) under the guise of civility endangers liberty and genuine equality. When freedom is properly protected, ‘mere civility’ is the natural result, while attempts to achieve something more than ‘mere civility’ invariably jeopardize freedom.