Hopefully, Ellen cleared up the “narrowness” of the decision in the SCOTUS Masterpiece Cake Shop LTD v. Colorado Human Rights Commission. The verdict was narrow not the vote. And while it was a victory for religious conscience, it was not a sweeping defense of Free Speech.
We do, however, find advocates for free speech in concurring opinions that should be examined because they remind us that the First Amendment is under constant attack and the Supreme Court provides a wealth of resources for its defense when needed. And they are needed.
Justice Thomas with Gorsuch concurring writes an excellent opinion in Masterpiece Cake Shop LTD v. Colorado Human Rights Commission, in which he comes to the defense of free speech. This is important for many reasons, not the least of which is that New Hampshire has a Human Rights Commission all its own and level pullers have been leaning toward laws and institutions that can’t help infringing on First Amendment rights in the name of things SCOTUS has, without political bias, found abhorrent elsewhere. (Emphasis Mine)
I agree that the Colorado Civil Rights Commission (Commission) violated Jack Phillips’ right to freely exercise his religion. As JUSTICE GORSUCH explains, the Commission treated Phillips’ case differently from a similar case involving three other bakers, for reasons that can only be explained by hostility toward Phillips’ religion. See ante, at 2–7 (concurring opinion). The Court agrees that the Commission treated Phillips differently, and it points out that some of the Commissioners made comments disparaging Phillips’ religion. See ante, at 12–16. Although the Commissioners’ comments are certainly disturbing, the discriminatory application of Colorado’s public accommodations law is enough on its own to violate Phillips’ rights. To the extent the Court agrees, I join its opinion. While Phillips rightly prevails on his free exercise claim, I write separately to address his free speech claim.
A quick note before we proceed. A small army of Democrats wielding various degrees of outrage have come out against the decision, apparently not having read it. It might be useful to ask them as they campaign for office, why they support religious bigotry backed with the force of law and the implication it has for free association? And why would any voter feel comfortable electing officials who advocate such an arbitrary and capricious abuse of power?
These are important questions to which Justice Thomas provides incite because this case is not about being gay or straight or even holding a wedding or ordering a cake. It is about a government’s partisan abusing of authority.
Once a court concludes that conduct is expressive, the Constitution limits the government’s authority to restrict or compel it. “[O]ne important manifestation of the principle of free speech is that one who chooses to speak may also decide ‘what not to say’” and “tailor” the content of his message as he sees fit. Id., at 573 (quoting Pacific Gas & Elec. Co. v. Public Util. Comm’n of Cal., 475 U. S. 1, 16 (1986) (plurality opinion)). This rule “applies not only to expressions of value, opinion, or endorsement, but equally to statements of fact the speaker would rather avoid.” Hurley, supra, at 573. And it “makes no difference” whether the government is regulating the “creati[on], distributi[on], or consum[ption]” of the speech. Brown v. Entertainment Merchants Assn., 564 U. S. 786, 792, n. 1 (2011).
The Colorado Human Rights Commission was not just hostile to Phillips’ faith in determining that his conduct was not expressive it declared that even if it were,
“…a reasonable observer would not view Phillips’ conduct as “an endorsement of same-sex marriage,” but rather as mere “compliance” with Colorado’s public accommodations law. Id., at 286–287 (citing Rumsfeld v. Forum for Academic and Institutional Rights, Inc., 547 U. S. 47, 64–65 (2006) (FAIR); Rosenberger v. Rector and Visitors of Univ. of Va., 515 U. S. 819, 841–842 (1995); PruneYard Shopping Center v. Robins, 447 U. S. 74, 76–78 (1980)). It also emphasized that Masterpiece could “disassociat[ e]” itself from same-sex marriage by posting a “disclaimer” stating that Colorado law “requires it not to discriminate” or that “the provision of its services does not constitute an endorsement.” 370 P. 3d, at 288. This reasoning is badly misguided.
Phillips’ should follow the law and do as they say. Justice Thomas disagrees.
The Colorado Court of Appeals was wrong to conclude that Phillips’ conduct was not expressive because a reasonable observer would think he is merely complying with Colorado’s public accommodations law. This argument would justify any law that compelled protected speech. And, this Court has never accepted it. From the beginning, this Court’s compelled speech precedents have rejected arguments that “would resolve every issue of power in favor of those in authority.”
The response of Colorado’s Human Rights Commission is the definition of tyranny. It is why we have a Bill of Rights and a Constitution; because the very sorts of people attracted to positions of power are the ones most likely to abuse it. And they do.
The Colorado Court of Appeals also erred by suggesting that Phillips could simply post a disclaimer, disassociating Masterpiece from any support for same-sex marriage. Again, this argument would justify any law compelling speech. And again, this Court has rejected it. We have described similar arguments as “beg[ging] the core question.” Tornillo, supra, at 256. Because the government cannot compel speech, it also cannot “require speakers to affirm in one breath that which they deny in the next.”
This next bit is long but critical. Again, emphasis mine.
The Court of Appeals did not address whether Colorado’s law survives strict scrutiny, and I will not do so in the first instance. There is an obvious flaw, however, with one of the asserted justifications for Colorado’s law. According to the individual respondents, Colorado can compel Phillips’ speech to prevent him from “‘denigrat[ing] the dignity’ ” of same-sex couples, “ ‘assert[ing] [their] inferiority,’” and subjecting them to “‘humiliation, frustration, and embarrassment.’” Brief for Respondents Craig et al. 39 (quoting J. E. B. v. Alabama ex rel. T. B., 511 U. S. 127, 142 (1994); Heart of Atlanta Motel, Inc. v. United States, 379 U. S. 241, 292 (1964) (Goldberg, J., concurring)). These justifications are completely foreign to our free speech jurisprudence. States cannot punish protected speech because some group finds it offensive, hurtful, stigmatic, unreasonable, or undignified. “If there is a bedrock principle underlying the First Amendment, it is that the government may not prohibit the expression of an idea simply because society finds the idea itself offensive or disagreeable.” Johnson, supra, at 414. A contrary rule would allow the government to stamp out virtually any speech at will. See Morse v. Frederick, 551 U. S. 393, 409 (2007) (“After all, much political and religious speech might be perceived as offensive to some”).
As the Court reiterates today, “it is not . . . the role of the State or its officials to prescribe what shall be offensive.” Ante, at 16. “‘Indeed, if it is the speaker’s opinion that gives offense, that consequence is a reason for according it constitutional protection.’ ” Hustler Magazine, Inc. v. Falwell, 485 U. S. 46, 55 (1988); accord, Johnson, supra, at 408–409. If the only reason a public accommodations law regulates speech is “to produce a society free of . . . biases” against the protected groups, that purpose is “decidedly fatal” to the law’s constitutionality, “for it amounts to nothing less than a proposal to limit speech in the service of orthodox expression.” Hurley, 515 U. S., at 578–579; see also United States v. Playboy Entertainment Group, Inc., 529 U. S. 803, 813 (2000) (“Where the designed benefit of a content-based speech. restriction is to shield the sensibilities of listeners, the general rule is that the right of expression prevails”). “[A] speech burden based on audience reactions is simply government hostility . . . in a different guise.” Matal v. Tam, 582 U. S. ___, ___ (2017) (KENNEDY, J., concurring in part and concurring in judgment) (slip op., at 4).
The Supreme Court with its 7-2 decision has stepped forward and said you must apply that force equally or not at all. Anyone ranting about the injustice of this should be challenged.
The commissioners were openly hostile to Phillips’ faith in their deliberation and testimony. Are you, in your opposition to this verdict equally hostile? How does this not make you inhospitable to a diversity of opinion or belief? And how can we trust that your bias will not manifest itself through some abuse of power?
We can’t.
This also suggests that Human (and Civil) Rights Commissions and statutory carve-outs for selected groups defined by Social Justice Warriors – social engineering mountebanks hawking the wares of equity and diversity – are a threat to the diversity of thoughts, ideas, opinions, words, even commerce. Thier mandate is to root out hate speech or hate crimes, two things which the Supreme Court has made clear do not exist as concepts in law.
How can a regulatory body operating under a false presumption ever be trusted to arrive at a conclusion without bias?
It can’t.
The point of Inclusive Excellence Curriculum, Diversity, Equity, or Social Justice, is to (dare I say daily?) exert a force on free expression and speech in contradiction to the fundamental nature of First Amendment Rights. Remember,
States cannot punish protected speech because some group finds it offensive, hurtful, stigmatic, unreasonable, or undignified. “If there is a bedrock principle underlying the First Amendment, it is that the government may not prohibit the expression of an idea simply because society finds the idea itself offensive or disagreeable.”
The Progressive left, and militant Democrats are using these tools through publicly funded universities and even public schools to convince future generations that any ruling body has the right to decide what your faith means, what your actions say, and what words can you use. It is the highest form of tyranny.
Advocates or defenders of these star chambers or the priorities that facilitate them (through publicly funded education) are enemies of the First Amendment regardless of party.
These things cannot coexist with the First Amendment. And the nation’s highest court has addressed the more delicate points repeatedly, though not here with adequate reach. So we should expect this serpent to raise its head again.
You can help by defending Free Speech and Free Association at every opportunity from those that would whittle away at the edges or destroy it outright. We’ve got a few thoughts to share on that here.
For those who are even wonkier than I’ve just been, there’s a good deal more from Thomas, as well as Gorscuh, and Alito. You may find the dissent to your liking as well. You are encouraged to review them at your leisure.
http://granitegrok.com/wp-content/uploads/Masterpiece-Cake-Shop-Thomas-with-Gorsuch.pdf
