With respect to social/moral issues, contemporary liberalism or progressivism is flourishing in certain states, among which are California and Colorado. And under this “new federalism,” the direct governmental attempt to coerce individuals is prominent. But the Supreme Court, as set out below, has largely resisted attempts to curtail individual religious and moral liberty. And two extremely significant decisions in this area will be handed down by the Court by the beginning of July.
On Tuesday, March 20, the Supreme Court will hear oral arguments in the Becerra case in which 130 private, non-profit pregnancy-support centers, the basis of whose existence is to oppose and offer alternatives to abortion, have sued the state of California in protest of a 2015 law requiring them to post and hand out notices of where abortions can be obtained. They argue that the Free Speech Clause of the First Amendment, and several Supreme Court precedents, protects their right to decide “what not to say” as well as what to say. In rebuttal, the state of California, by its attorney general, Xavier Becerra, argues that the state law is a sort of public service because it informs and “enables women to secure the services they deem appropriate’ and “does not require a statement or endorsement of belief” but only the handing out of information by the centers.
In December, the Court heard oral arguments in the Masterpiece Cake case, in which a solitary baker, who regularly serves homosexual customers, has professed himself morally and religiously opposed to the attempt by the state of Colorado to force him to bake a cake for a same-sex “marriage.” The baker argued several issues, all aspects of the First Amendment: that baking a case was “expressive conduct,” a species of speech; that forcing him to bake the cake was a form of “compelled speech”; that it would violate the free exercise of his Christian religion; and that free speech and free exercise of religion overlapped and partly coincided.
The Masterpiece case came about because Colorado has its own civil-rights statute and had recently amended it to include “sexual orientation.” In defense of its intent to force the baker to participate in a same-sex wedding, Colorado actually argued that the state statute promoted the economy of Colorado, that such an act of discrimination by the baker would not only have “measurable adverse economic effects,” but also prevent “the economic and social balkanization prevalent when businesses decide to serve their own kind.” Christians involved in wedding businesses have suffered similar treatment in Oregon, Washington, New Mexico, New York, and Minnesota.
The Supreme Court precedents argued by the targets of the state laws, the pregnancy-support centers and the baker, in both cases are largely the same and are overall in their favor. In recent decades, the Court has been attentive to the protection of free speech in a variety of contexts and has, in fact, ruled unanimously in four separate cases. In Reed v. Town of Gilbert (2015), the Court decided that a city ordinance restricting a church from deploying signs directing church-goers to the church was a “content based” restriction on the church’s freedom of speech. In Hurley v. GLIB (1995), the Court ruled that a gay and lesbian group could not force its way into Boston’s St. Patrick Day’s parade because such an intrusion would cause the parade organizers to effectively speak a message that they did not want to speak. They had a First Amendment right to choose “what not to say,” the Court said.
In RAV v. St. Paul (1992), the Court ruled that a certain criminal ordinance prohibiting hate symbols could not be used to prosecute a teenager for burning a cross on the lawn of a black family because the ordinance was based on “viewpoint discrimination.” Other laws were available to address the cross burning, the Court noted. And in Wooley v. Maynard (1974), the Court held that a Jehovah’s Witness could conceal part of a state motto on a vehicle license plate because he had the right “to avoid becoming the carrier” of the “message” of the state.
And in the 6-2 decision in Ag. Intl. Dev. v. Alliance (2013), the Court has recently gone so far as to invalidate on First Amendment grounds a provision of an act of Congress requiring recipient organizations of international development grants to have an established policy opposing prostitution and sex trafficking. The Court held that such a provision of law was an impermissible requirement that the organizations “profess a specific belief.” As an alternative, the Court said, the Congress could have mandated that no federal funds be used for those two purposes.
Friends of the Court
Notable are “friends of the court” briefs filed by certain members of Congress in both cases and by the Trump Administration’s Department of Justice. In Becerra, the Justice Department filed a brief in which it argued that the centers “have a very strong First Amendment interest in refraining from speaking.” In Masterpiece, the Department said that the Colorado law violated the First Amendment and unconstitutionally impinged on “an individuals’ right to speak or remain silent according to the dictates of his or her conscience.”
In Becerra, 16 Democrat senators and 85 Democrat members of the House filed a brief in support of California, and they argue, inter alia, that the state is just informing “consumers of their rights and how to exercise them.” In contrast, seeking to uphold “American’s longstanding and bipartisan tradition of protecting freedom of speech and freedom of conscience,” 15 Republican Senators, 124 Republican members of the House, and one Democrat member of the House have filed a brief in support of the pregnancy-support centers.
In Masterpiece, 11 Republican senators and 75 Republican members of the House filed a brief in support of the baker arguing that the Colorado attempted coercion not only violated the First Amendment but was “also un-American and a gross violation of personal liberty.” On the other side, 36 of the 47 Democrat Senators and 175 Democrat members of the House filed a brief opposing the baker. They said that “religiously motivated or ‘expressive’ conduct exemptions should not be used to further entrench discriminatory conduct in places of public accommodation.”
The “right of privacy” was originally conceived by future Supreme Court Justice Louis Brandeis in 1890 as “the right to be let alone.” In his dissent in Obergefell v. Hodges, the case in which the Supreme Court, by a 5-4 vote, imposed same-sex “marriage” on all the states, Justice Alito said, “I assume that those who cling to old beliefs will be able to whisper their thoughts in the recesses of their homes, but if they repeat those views in public, they will risk being labeled as bigots and treated as such by governments, employers, and schools.” In Becerra and Masterpiece, we shall see to what extent certain states will be allowed to control the speech of individual citizens.