The ‘Mere Civility’ of Equality Law and Compelled Speech Quandaries

9 Oxford Journal of Law and Religion 288 (2020)

20 Pages Posted: 10 Sep 2021 Last revised: 13 Sep 2021

Date Written: March 8, 2020


When, if ever, do business owners have a right to be exempted from laws prohibiting discrimination in the commercial marketplace? Although public debate over this question often focuses on the issue of religious liberty, litigants seeking exemptions in court have placed equal or greater reliance on arguments about compelled speech. This article examines how such arguments have been employed in recent high-profile cases in both the UK and the USA. The article also addresses a new variation on the exemption argument inspired by Teresa Bejan’s book, Mere Civility, and the allegedly ‘minimal’ conception of civility Roger Williams advocated in the 17th century. After explaining why reliance on Bejan and Williams is misplaced, the article turns to the key questions that arise under modern compelled-speech doctrine when a business owner seeks to resist an equal-service mandate. The US Supreme Court ultimately sidestepped those questions in Masterpiece Cakeshop, Ltd v Colorado Civil Rights Commission, while the UK Supreme Court (UKSC) offered cursory and unsatisfactory answers in Lee v Ashers Baking Co. This article fills the gap with a more thorough analysis.

Keywords: Equality, Civility, Free Speech, Compelled Speech, Religious Liberty, Teresa Bejan

JEL Classification: K10

Suggested Citation

Oleske, Jr., James M., The ‘Mere Civility’ of Equality Law and Compelled Speech Quandaries (March 8, 2020). 9 Oxford Journal of Law and Religion 288 (2020), Available at SSRN:

James M. Oleske, Jr. (Contact Author)

Lewis & Clark Law School ( email )

10015 S.W. Terwilliger Blvd.
Portland, OR 97219
United States

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