A constitutional expert says coming soon from the U.S. Supreme Court will be a definitive ruling on the First Amendment, and whether cities and states can abridge the rights protected there with their so-called “nondiscrimination” laws.
The comment comes from George Washington University professor and commentator Jonathan Turley.
He is addressing the Supreme Court’s decision to review a Colorado case in which the state is attempting to specify what people can – and cannot – say regarding their own faith.
On its face, that would appear to violate the First Amendment’s protection of speech rights, and, in fact, the court will be review this specific issue: “Whether applying a public-accommodation law to compel an artist to speak or stay silent violates the Free Speech Clause of the First Amendment.”
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The case involves Lorie Smith and her 303 Creative company to design websites for weddings. She cannot, because of her Christian faith, promote same-sex duos, and so has become a target for the leftists in Colorado, which has a homosexual governor and a Democrat-controlled legislature.
The state earlier earned a stunning rebuke from the Supreme Court on the same law, but that decision involving Jack Phillips and his Masterpiece Cakeshop was decided based on the state’s “hostility” to Christianity, not the law itself.
Now comes Smith, with the state’s attack on her faith, and Turley points out that while he, himself, supports same-sex marriages, he doubts the legality of the state’s “Anti-Discrimination Act” that has as its very purpose to be “eliminating … ideas.”
Those words come from the 10th Circuit Court of Appeals decision that went against Smith, and Turley said they “may be some of the most honest but chilling words ever uttered in a federal court opinion.”
He said, “Many years ago, I wrote an academic piece on how anti-discrimination laws would inevitably collide with free-speech and free-exercise rights. Those conflicts continued to mount across the country. In 2018, the court was thought to be ready to clarify the applicable standards in the case of a religious cake shop owner who refused to make cakes for same-sex couples. The court ultimately punted in that case, Masterpiece Cakeshop v. Colorado Civil Rights Commission, ruling for the owner yet leaving uncertainty over the constitutional limitations on cities and states under anti-discrimination law.
“Smith’s case has long been a focus for some of us. I have written in favor of taking a free-speech approach to these cases rather than treating them as conflicts under the Constitution’s religion clauses.”
He said the coming decision, then, “could signal that a new, bright line will be drawn in this case.”
He said, “One’s personal views or values should not matter in determining whether Smith has a right to the expression of her own views as an artist,” and that “brings us to the most striking aspect of the 10th Circuit opinion.”
Turley said past court decisions have minimized the actual impact on speech rights on those “nondiscrimination” laws, which actually institutionalize discrimination against those with opinions not favored by the state.
The 10th Circuit Court, embedded as it is within a leftist state, already has produced some leftist decisions, and in this case it was “neither evasive nor ambiguous.”
“It agreed that this case involved ‘pure speech’ and that the state was forcing her both to say things she opposed and to not say things she supported. It further agreed that this denial required the satisfaction of the most stringent constitutional standard: the strict scrutiny test. It then said all of that was perfectly constitutional. The court ruled that the state could create a type of ‘pro-LGBT gerrymander’ forcing religious artists to celebrate same-sex marriage while protecting the speech rights of secular artists,” he explained.
In fact, when the Phillips case was before the Supreme Court, the evidence showed Colorado allowed pro-LGBT bakers to refuse requests to create a cake with the Old Testament condemnation of homosexuality as a theme because of their “beliefs.” The state, however, denied Phillips exactly the same protections.
Turley said, “After years of obfuscation and avoidance, the court finally has a free speech case without exit ramps or extraneous issues. Free speech offers a clear path and precedent for addressing these conflicts. For example, a Jewish baker asked to make a ‘Mein Kampf’ cake, or a black baker asked to make a KKK cake, should be able to refuse those jobs as offensive to them.”
“‘Public accommodation’ should not mean ‘compelled public speech.’ Likewise, it should not allow the government to ban an artist from expressing her views on the sanctity of marriages, even if many of us reject her views,” he explained.
He suggested the appeals court ruling is rank with prejudice, explaining its opinion was that “Some views are simply intolerable. According to the court, an artist espousing faith-based objections to same-sex marriage is simply one of those views that must be excised ‘from the public dialogue’ and ‘eliminating such ideas is CADA’s very purpose.’”
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