Category: Free Speech

The Cake Baking case

The Cake Baking case

This week’s segment of Cline on the Constitution.

 

“We Reserve the Right to Refuse Service to Anyone.”

 

When Americans think of Civil Rights, they often think of the Constitution.  That is okay.  But it is inaccurate.

 

Our most fundamental rights are enshrined in the Constitution and Bill of Rights.  There is, however, a distinction between the Bill of Rights and Civil Rights legislation. The Protections contained in the Bill of Rights are directed against Government Action. Civil Rights laws, on the other hand, regulate Private Conduct.  For example, being denied access to a government building may violate the Bill of Rights.  Being denied accommodations at a privately owned inn or restaurant involves Civil Rights law not the Constitution.

 

Civil Rights laws are not part of the Constitution.  They are laws which, like other laws, are passed by the Congress and State Legislatures or, increasingly, local government entities such as city councils or school boards. And as such, unlike the Bill of Rights they can be changed by the same governmental body that passed the law in the first place.

 

When in conflict with the United States Constitution, Civil Rights laws are invalid.  The reason being because the United States Constitution has a Supremacy clause.  It is the Supreme Law of the land. No federal, state or local ordinance, even if it is in the nature of Civil Rights legislation, may violate the United States Constitution nor a citizen’s rights enshrined in our Bill of Rights.

 

The primary Federal Civil Rights Laws were passed by Congress in 1964.  The authority to pass the laws is based upon the Constitutional grant to Congress of the power to regulate Interstate Commerce.

 

What this means is that if it can be rationally argued that conduct by a private business “affects” Interstate Commerce then Civil Rights laws that regulate the conduct is constitutional.

 

Two examples may help clarify. We all remember that during the civil rights movement, one of the tactics used to end segregation in transportation was to have teams of Black people ride buses throughout the South.   State enforced public-accommodations laws restricting where Blacks were allowed to ride in buses were thereby challenged.  Because the private business of busing could be directly shown to “affect” interstate commerce even if the bus never crossed state lines the Civil Rights legislation prohibiting the discrimination by private bus companies was constitutional. On the other hand, attempts by States to regulate gun possession by enforcing gun free zones near schools could not be justified as “affecting” interstate commerce and were struck down by the Supreme Court as violative of the Second Amendment.

 

Besides the Federal Civil Rights laws, there is a whole other layer of Civil Rights laws which have grown up over the last several decades.  The first level is at the State level.  Though some of the States have long histories of acting to prohibit discrimination, their laws were generally limited to discrimination based on “race, color or previous condition of servitude.”

 

Modernly, there are not only State Civil Rights laws, there are County Civil Rights laws and even City Civil Rights laws.  Almost all are directed toward outlawing discrimination by private businesses against groups of persons.

 

And the list of groups has expanded over the last several decades.

 

Among others, modern civil rights laws address discrimination as applied to race, gender, creed, ethnic origins, religious minorities, sexual orientation, marital status, ancestry, disability, illegitimacy and the newest category, gender identity.

 

The list expands or contracts depending on the jurisdiction.

 

And the frontier is being pushed even further.  California’s legislature is in the process of passing a new Civil Rights law requiring half of all corporate board of directors of private business be women. Of course, if they can require such a quota for women, how long will it be before other groups demand equal representation on corporations doing business in the State?

 

What makes for interesting juxtapositions of this tome of Civil Rights legislation at the state and local level is the Constitution of the United States. Actions to enforce civil rights laws, be it by court or commission, is Government Action and, therefore, if the enforcement action impinges on an individual’s rights under the Bill of Rights, the matter is brought full circle.  The question is joined.  Does the Civil Rights law violate the Constitution?

 

This is where a man by the name of Jack Phillips found himself.  Mr. Phillips owns and operates a bakery. He is a devout Christian.  He operates his business according to Christian principles even if it means forgoing income.  He is closed on Sundays, he pays his employees higher than minimum wage, he gives them loans of money in time of need, he refuses to bake cakes containing alcohol, he refuses to bake cakes with racist or homophobic messages or cakes criticizing God and refuses to bake cakes celebrating Halloween even though Halloween is one of the most lucrative seasons for bakeries.

 

Two men asked him to prepare a wedding cake in celebration of their marriage.  He declined.  He offered to prepare and sell them any other baked goods they desired, including birthday cakes, but to create the cake celebrating a marriage of a same sex couple violated his religious beliefs that marriage is a sacred union between one man and one woman. To create such a cake celebrating the opposite of what he believed, he argued, violated his First Amendment rights, both as to the First Amendment guarantee of the Free Exercise of one’s religion and Freedom of Expression.

 

His argument brought to the fore, two rights that are superior to any state or local civil rights ordinance: Freedom of Religion and Free Speech.

 

The State of Colorado made short shrift of the Mr. Phillip’s religious beliefs and ruled he violated the couple’s rights by not baking the cake. One commissioner went so far as to equate Mr. Phillips refusal to bake a cake to debunked justifications for slavery and the holocaust. He said, “and to me it is one of the most despicable pieces of rhetoric that people can use to – to use their religion to hurt others.”

 

The Colorado commission’s reprehensible treatment of Phillips gave Justice Kennedy a gift.

 

Justice Kennedy is the author of the most important gay rights cases of the era, including the Obergefell case banning restrictions on Gay Marriage.

 

And on his way off the court, he needed to find a way to uphold Phillips without endangering the progress in jurisprudence regarding gay rights he had led the way in engendering.

 

In a 7-2 decision written by Kennedy, the court found for Mr. Phillips.  However, as I said in my last blog entry, they essentially punted. They didn’t find that Mr. Phillips rights were violated by requiring he bake the cake or be fined.

 

Rather, in his majority opinion Kennedy found that the Colorado commission’s treatment of Phillips demonstrated an “unconstitutional hostility to his religious beliefs.”  He went on to fashion some new rules, which may or may not survive the test of time.  But he did not address the Free Exercise or Freedom of Speech issues.  He essentially kicked the can on those issues down the road to be decided by a future Supreme Court.

 

As to the Free Exercise clause, the court is walking a tight rope of their own making.  On the one hand, they fear that if they allow people to assert their religious beliefs in denying service to identifiable groups it would undermine all civil rights laws that seek to govern private conduct. A return to the back of the bus as it were. On the other hand, does government get to make the decisions on what is a valid religious belief and tell citizens they are not free to exercise their religion as they choose? The Constitution explicitly says No.

 

What is most interesting about the case and what has not received a lot of public discussion, but which was very much on the minds of many of the Justices as reflected in the concurring opinions penned by Alito, Gorsuch, and Thomas is what I believe is a major freedom of expression issue and what the court will have to address in the near future. And that is “Compelled Speech.”  It has import in many areas.  From college campuses enforcing speech codes as if they were “re-education camps” to the large internet companies policing points of view.

 

As applied to the Baker, the court acknowledged that Mr. Phillips considered the cakes he made as works of art.  As such they were “expressive conduct” which is protected under the First Amendment.

 

Additionally, as I outlined in my last blog, requiring speech approved by the government is just as violative of the first amendment as restricting protected speech.

 

For example, the court referenced a previous case in which the Court struck down an ordinance requiring the organizers of a Saint Patrick’s Day parade to include a unit celebrating gays and bisexuals.

 

The court explained that they rejected the notion that governments can mandate thoughts and statements acceptable to some groups or indeed all people, as the “antithesis of free speech.” As one of the concurring opinions stated, “One important manifestation of the principle of free speech is that one who chooses to speak may decide what NOT to say and tailor the content of his message as he sees fit.”

 

Colorado attempted to justify requiring the creation of the cake as compelling Phillip’s speech to prevent him from “denigrating the dignity” of same sex couples, “asserting their inferiority” and subjecting them to “humiliation, frustration, and embarrassment.”

 

One justice wrote, “These justifications are completely foreign to our free-speech jurisprudence.” He went on to say, “States cannot punish protected speech because some group finds it offensive, hurtful, stigmatic, unreasonable, or undignified.” And further, “it is not the role of the State or its officials to prescribe what shall be offensive.”

 

The Justice hit the nail on the head when he quoted an earlier case, “If the only reason a public-accommodations law regulates speech is “to produce a society free of biases against 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.”

 

I foresee many other instances where the Bill of Rights is going to come into conflict with the increasingly aggressive use of State and local ordinances to say nothing of school rules designed to stifle unwelcome opinions by requiring a rote declaration of allegiance to principles dictated by those in authority.

 

Ultimately, such laws harm rather help the cause of gay rights as well as other civil rights by oppressing those who may disagree with what we believe.

 

Stay tuned.

 

But about those signs “reserving the right to refuse service to anyone.”?

 

Forget it.

 

For other articles on the Constitution as well as writings by Phil Cline, visit philcline.com

 

 

 

 

 

 

 

 

 

Speech Issues on Abortion

Speech Issues on Abortion

This week’s segment of Cline on the Constitution continues the review of major cases decided by the Supreme Court in the last term.

 

The court issued opinions on two cases involving Freedom of Speech and Association.

 

In one case the Court affirmed an important principle regarding Free Speech.  In the other they punted.

 

As to the first case, California’s steady drift toward becoming a complete “Nanny State” resulted in a law directly targeting, appropriately enough, anti-abortion pregnancy Centers.

 

In National Institute etc. v Becerra, operators of Pro-Life clinics challenged a State Law requiring that they post information on how to get no cost state funded abortions. The law compelled these clinics to speak against, indeed advertise, the very thing they abhor. It is rather Kafkaesque to, by force of law, require people to advertise for a state funded procedure that is anathema to their core beliefs on religion, health and morality.

 

And that is aside from the fact we were given yet another law, which assumes a free people, are inept and incompetent. In a state like California where obtaining an abortion is literally free on demand, and the State puts out endless reams of materials about to how and where to get an abortion, the “ninny nannies” in the legislature and Governor’s mansion harbor the inchoate suspicion that a woman who wants one might not be able to figure it out how to get one.

 

The second case is the infamous “Masterpiece Cakeshop” case which presented the issue whether the Court would be willing to uphold a governmental decision that someone’s religious beliefs and practices must be cast aside in service to an ever-increasing alphabet of offended persons who can’t be expected to walk across the street to another merchant to buy a damn wedding cake.  The case centers on the intersection of both Freedom of Religion and Freedom of Speech.  I will have more to say about this case next week.

 

Now, back to the California abortion advertiser case.  In an attempt to uphold the law the Ninth Circuit Court of Appeals, those legendary masters of legal legerdemain, attempted to invent a new category of speech. They called it “professional speech.”  This new category would give federal courts the means to ignore the usual requirements that “content based” laws that target speech based upon content have to pass strict scrutiny tests.  It would mean government would be free to regulate such speech as they see fit, ban the speech or, like in this case, even require it.

 

The Supreme Court rightly told them there was no such thing as “Professional Speech” and ruled they couldn’t do that.

 

Justice Clarence Thomas wrote the majority opinion, but it was Justice Kennedy who succinctly stated the trenchant issue.

 

“This law is a paradigmatic example of the serious threat presented when government seeks to impose its own message in the place of individual speech, thought, and expression.”

 

“For here the State requires primarily pro-life pregnancy centers to promote the State’s own preferred message advertising abortions.”

 

“This compels individuals to contradict their most deeply held beliefs, grounded in basic philosophical, ethical, or religious precepts . . . “

 

The minority opinion written by Justice Stephen Breyer worried that the majority’s opinion might lead to challenges of “informed consent” rules and regulations.  For example, by endangering laws requiring medical professionals to give enough information that the person consenting to a procedure is doing so with full knowledge of the risks and benefits.  That, however, is more of a civil liability avoidance procedure than a constitutional principle.

 

The basic Free Speech principle is that if government cannot restrict a person’s freedom of speech, can they require a people to say something they disagree with simply because the government has decided it might be necessary to protect someone it assumes lacks the intelligence or responsibility to get out and get what they want themselves.

 

The opinion rightly points out that if government determines that a message needs to get to out and they have a rational basis for doing so, then, they have a number of way of disseminating the information, including advertising, themselves.  What they can’t do, is required others to communicate that message for them.

 

Lastly, one can be supportive of the landmark Casey case that recognizes a woman’s right to choose to a terminate a pregnancy under certain circumstances without the government unfairly burdening that choice yet be concerned when the government passes laws as it did here.  When it becomes so involved in advocacy of a position that it violates constitutional principles put in place to protect one’s freedom to follow sincerely held beliefs, government has gone where they may not go.

 

For other writings and articles by Phil Cline, visit philcline.com

 

The Slants

The Slants

Simon Tam named his band “The Slants.” The name was intended to be a slur against people of Asian decent. Simon, himself a person of Asian descent, felt that by taking ownership of the derogatory term, he could drain it of its “denigrating force.”

When he applied for a trademark for the name, the Federal Government denied Tam’s request based upon agency rules that prohibited the registration of trademarks that might “disparage . . . or bring . . .into contempt or disrepute” any “persons, living or dead.”

Serious football fans know that there is a similar case pending in the federal courts concerning the trademark registration for the Washington Redskins Football team. The same agency suspended the registration of their trademark and the Redskins sued. In a similar vein, the students and alumni of one of our local high schools was affected when the State of California banned the use of the term “Redskins” for public school mascots.

The Supreme Court this week ruled against Political Correctness and Strengthened the case for the Washington Redskins. They held that the Federal Agency violated the Free Speech clause of the Constitution when they denied Tam his trademark.

Some types of speech are less protected than others. For example, Commercial Speech (ads for cars and such) does not have the same protections as Political Speech.

So-called government speech is not protected at all. For example license plates can be regulated as government speech. The court in the Tam case found, however, that Trademarks are private not government speech.

Under the Constitution, the Government may regulate the “time, manner, and place” of speech if the regulation is ‘Viewpoint neutral”. For example the government might be able to ban billboards of a certain size that advertised medical clinics under the rationale they were a distraction to drivers, but they could not ban billboards for medical clinics that performed abortions. Such a rule would not be Viewpoint Neutral.

The Tam case turned on the finding that Offensive speech, however repugnant is a Viewpoint.

The court found that “a fundamental principle of the First Amendment is that the government may not punish or suppress speech based on the disapproval of the ideas or perspectives the speech conveys.” The government’s denial of a trademark because the government decided the term “Slants” was offensive was not Viewpoint Neutral.

And the fact the though the speaker may not mean to offend, but the audience, nevertheless would be offended is not enough to take the speech outside First Amendment protections. As the court stated: “The Government may not insulate a law from charges of Viewpoint Discrimination by tying censorship to the reaction of the speaker’s Audience.”

This language in the opinion is especially important in these times of rampant political correctness on the campuses of public colleges. When colleges, supported by public funds, seek to impose speech codes, ban certain speakers from campus or commencements, or punish the use of words and speech which college administrators or their minions deem “Hate Speech” they violate the Constitution.

“The danger of Viewpoint Discrimination”, the court opined, “is that the government is attempting to remove certain ideas or perspectives from a broader debate. The danger is all the greater if the ideas or perspectives are ones a particular audience might think offensive.”

And finally they said, “A law that can be directed against speech found offensive to some portion of the public can be turned against minority and dissenting views to the detriment of all. The First Amendment does not entrust that power to the government’s benevolence. Instead, our reliance must be on the substantial safeguards of free and open discussion in a democratic society.”

The bottom line is that the government attempted to ban a name of a band, the Slants, because the name might have offended a portion of the public. The speaker’s intent and the public’s reaction was irrelevant. The government’s denial of the trademark for the Slants was Viewpoint Discrimination and is prohibited under the First Amendment.

It now appears that if the name the Washington Redskins football team is changed someday because it is deemed offensive, it will be because the owners want it changed. It won’t be because the Government ordered it changed. That is as it should be under the Constitution.

As to local high schools around the state that changed the name of their mascots to conform with politically correct dictates from the State Government, it is unlikely anyone would challenge the law at this point. The constitution requires an actual case or controversy for the Supreme Court to throw out a rule. In those cases, it appears the government’s thought police won and the First Amendment lost.