Hidden Gems in Recent Supreme Court Decisions

The Supreme Court is not operating like it was designed to operate. “The task of the Supreme Court is not to rule on guilt or innocence, rather it is to determine whether the decisions of lower courts are consistent with, or in violation of, the rights and guarantees defined by the Constitution.” The constitutional framers never intended that five unelected judges should be the final arbiter for what’s right and wrong for 320 million people.

At this point in time, we are stuck with this unbalanced system of checks and balances. Whatever good comes out of the court that actually fits with what the Supreme Court was designed to be is a good thing.

Hidden in the arguments of two of the latest Supreme Court decisions offer a defense of bakers,s florists, photographers, and caterers who refuse to service same-sex weddings and related functions. In the 5-4 Janus v. AFSCME decision, the Supreme Court ruled that state-government employees cannot be forced to pay so-called “fair share” dues to labor unions. The following comments are from Justice Alito:

Compelling individuals to mouth support for views they find objectionable violates that cardinal constitutional command, and in most contexts, any such effort would be universally condemned. Suppose, for example, that the State of Illinois required all residents to sign a document expressing support for a particular set of positions on controversial public issues — say, the platform of one of the major political parties. No one, we trust, would seriously argue that the First Amendment permits this. Perhaps because such compulsion so plainly violates the Constitution, most of our free speech cases have involved restrictions on what can be said, rather than laws compelling  speech. But measures compelling speech are at least as threatening.

When speech is compelled, however, additional damage is done. In that situation, individuals are coerced into betraying their convictions. Forcing free and independent individuals to endorse ideas they find objectionable is always demeaning, and for this reason, one of our land­ mark free speech cases said that a law commanding “in voluntary affirmation” of objected-to beliefs would require “even more immediate and urgent grounds” than a law demanding silence.

Let’s apply some of Justice Alito’s language to a cake-baking case that is ongoing in Oregon:

Suppose, for example, that the State of Oregon required all residents to support a particular set of positions on controversial public issues — say, the platform of one of the major political parties regarding same-sex marriage.

Forcing bakers (or anyone else) “to endorse ideas they find objectionable is always demeaning.” This freedom applies to everyone, not only people who hold particular religious convictions.

The following is from the Supreme Court’s 5-4  NIFLA v. Becerra decisionDavid French writes that “Justice Thomas’s majority opinion rejecting California’s attempt to force pro-life pregnancy centers to advertise for free and low-cost abortions was clean, precise, and cutting. It was the doctrinal scalpel.” The following from Justice Thomas also applies to laws that force professionals in the service industry to act in a way contrary to their beliefs:

The dangers associated with content-based regulations of speech are also present in the context of professional speech. As with other kinds of speech, regulating the content of professionals’ speech “pose[s] the inherent risk that the Government seeks not to advance a legitimate regulatory goal, but to suppress unpopular ideas or information.” Turner Broadcasting, 512 U. S., at 641. Take medicine, for example. “Doctors help patients make deeply personal decisions, and their candor is crucial.” Wollschlaeger v. Governor of Florida, 848 F. 3d 1293, 1328 (CA11 2017) (en banc) (W. Pryor, J. concurring). Throughout history, governments have “manipulat[ed] the content of doctor-patient discourse” to increase state power and suppress minorities.

Justice Anthony Kennedy supplied the death knell to the California law that forced “crisis-pregnancy centers to post signs about state-sponsored abortion services, regardless of whether those facilities are licensed medical providers or not. The decision vindicated pro-life advocates who have long argued that states and cities unfairly target these centers, which exist to provide alternative pregnancy services to women who don’t want abortions” (The Atlantic):

The California Legislature included in its official history the congratulatory statement that the Act was part of California’s legacy of “forward thinking.” App. 38–39. But it is not forward thinking to force individuals to “be an instrument for fostering public adherence to an ideological point of view [they] fin[d] unacceptable.” Wooley v. Maynard, 430 U. S. 705, 715 (1977). It is forward thinking to begin by reading the First Amendment as ratified in 1791; to understand the history of authoritarian government as the Founders then knew it; to confirm that history since then shows how relentless authoritarian regimes are in their attempts to stifle free speech; and to carry those lessons onward as we seek to preserve and teach the necessity of freedom of speech for the generations to come. Governments must not be allowed to force persons to express a message contrary to their deepest convictions. Freedom of speech secures freedom of thought and belief. This law imperils those liberties.

French noted the irony in Kennedy’s reasoned argument since Kennedy’s “sexual-revolution jurisprudence empowered much of the modern assault on religious freedom and free speech.”

It remains to be seen how these decisions will impact the court in future cases. With Kennedy retiring, there may be a rehearing of the same-sex marriage case in which he was the fifth vote to legalize the preposterous idea that people of the same sex are marriageable and that anyone who does not agree is an enemy of the State.


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