I am currently working on a brief in a federal case involving the Virginia Values Act. This is a law whose effect is to require some to photograph a same sex wedding or sell book which advocates a particular sexual morality even when it conflicts with their religion to do so. Since the refusal in this instance is certainly the unpopular position (the law was made by the elected officials, which makes this the majority position), and since it would be surprising that some (or all) of the judges or their clerks would think a religious objection to bigoted if not immoral, it is necessary first to explain the importance of protecting these people and their opinions, even if the majority of the public and even if the judge (or clerk) believes otherwise. The First Amendment is put in place specifically to protect that which “we” find abhorrent.
We should also remember that freedom of speech and freedom of religion function when it is protected for all of us. If the government, at my request, has the power to shut down your speech, tomorrow the government will have the power to shut down my speech.
(This is a draft, so there will typos, missing words, and such. If anyone is kind enough to offer criticism, such as I don’t understand this sentence, please do. This also is not the entire argument. It is merely a preface.)
IT IS THE DUTY OF THIS COURT TO PROTECT THE INTERESTS OF AMICI PRECISELY BECAUSE THEIR BELIEFS ARE NOT THE MAJORITY POSITION
When any two human beings come together in any sort of society, there will be things upon which they disagree. When those disagreements are trivial, a preference for chartreuse over forest green, the disagreement is tolerated if it is noted at all.
The trivial warrants no response and thus causes no conflict nor needs any protection.
However, when we move to matters of greater concern, matters of religion, of politics, those matters which make us human by which we define ourselves, we find the grace of overlooking a distinction or even civil toleration difficult.
In matter of impiety, Socrates must be sentenced to death. When one’s dignity is assaulted, Hamilton must die at Burr’s gun. When tribes differ in religion, war erupts. When politics clash, the entire world can plunged into war on all sides. And should political distinctions arise within a country, dissidents are “disappeared.”
Matters of human sexuality touch upon all these points at once. It is undisputed by anyone that human sexual plays a fundamental point in religions. Buddhist monks are monks. A man in Mali may have multiple wives, and a Roman Catholic priest in Italy may have none. The male priests of Cybele in the Roman Empire castrated themselves and dressed as women. The ancient Hebrews were forbidden to dress as the opposite sex. Shakers lived in a communal life; but also lived celibate lives.
That human beings choose among these variations and far more is undisputed. It is also undisputed that the human beings who make these determinations do so honestly and in good faith. They believe that their personal good and the good of the society in which they live in part depends upon their moral decisions in the matter of sexuality.
Moreover, the belief held by various people seem to be undisputable and matters of common sense. Even matters upon which we all hold to abhorrent and criminal are matters upon which others have disagreed. Pedophilia was tolerated among the Roman aristocracy. Moreover, the glorious history of the city of Rome included the kidnap and rape of the Sabine women. In our recent history, the members of Isis under the guise religion approved kidnap, rape, and slavery of women. Slavery was shamefully tolerated in the United States for nearly 100 years of nation (and longer when we count it in the colonies). Aztecs worshipped their god by murdering parents before children so that they could murder the child while the child was weeping.
How then will we resolve these matters? Our options range between (enforced) conformity of opinion and conduct or civil toleration. All decisions will entail a combination of both: conformity here, toleration there.
We in America demand conformity among everyone in agreeing that pedophilia, kidnapping, rape, slavery, murder are utterly abhorrent and not to be tolerated under any circumstances. (And rightly so.) Our civil tolerance turns upon the concept of consent: a child does not consent; the victim of rape does not consent.
And while consent is the moral boundary which marks our degree of civil toleration when it comes to conduct; there is no need for consent when it comes to opinion. Indeed we hold that one may advocate for these matters provided they do not result in the conduct.
When it comes to what I think, believe, hold dear, or despise; I do not need your consent, nor do you need mine. I will make my decision about such things; you will make yours. The government will not become involved unless you infringe upon my conduct and either coerce or prevent me from making my own decision in such matters.
Only where your belief results in violence to my body or property will the government will the government impose itself. As Thomas Jefferson stated the principle, which has been repeatedly found in the law:
The error seems not sufficiently eradicated, that the operations of the mind, as well as the acts of the body, are subjects to the coercion of the laws. But our rulers can have authority over such natural rights only as we have submitted to them. The rights of conscience we never submitted, we could not submit. We are answerable for them to our God. The legitimate powers of government extend to such acts only as are injurious to others. But it does me no injury for my neighbour to say there are twenty gods, or no god. It neither picks my pocket nor breaks my leg.
(Thomas Jefferson, Notes on the State of Virginia, Query XVII, “Religion”)
It is the resolution which we have reached in matters of religion and politics. The European wars between Roman Catholics and Protestants during the Colonial Period of America and the religious wars which are taking place in our time in many places do not have a place in America. In some other country, the people may take up weapons over opinion and religion. In our country, these things cannot be matters of war. It the job of the government is to keep the peace and permit both sides to hold vigorously disputed and contradictory position.
This toleration does not mean that each individual feels happy about that toleration. We each, confirmed in the commonsense and moral goodness of our own position, think those who disagree to be either mad or immoral. Thus, the temptation always arises to seek an imposition of conformity to our position.
That desire for conformity and the rejection of that conformity is made in good faith; it is made honestly. Should you and I disagree, we will seek to rescue the other from error (and from the concomitant danger to our society). If enough agree with me or with you, we will go to the legislature and demand a law prohibiting the exhibition of this dangerous, offensive position.
That is the nature of the world. Laws prohibiting blasphemy and lese majeste are not uncommon in history. The State Department has published advisements about current laws prohibiting blasphemy and lèse majesté around the world. The laws are always popular: A majority constituency is always pleased.
And if it were not for the independence of the judiciary, such laws would be promulgated and enforced throughout this country. But there are courts: these courts were put into place precisely because the temptation to maximize conformity to the general will always be the most popular to reach a psychological state of comfort for the greatest number of people.
This is not to deny that the psychological state is a good. The distress that an honest adherent feels by those who disagree may be profound. It does feel degrading to hear and see those who disagree do so publicly.
But, however important that psychological well-being, even the psychological well-being of the greatest number, and however much the individual judge in personal life sympathizes with one-side in the debate, the duty remains that the individual having donned a robe and taken an oath has the obligation to protect the speech and religion of those whom the judge personally finds repellant.
As Justice Stevens wrote, “[T]he federal courts — and particularly this Court — have a primary obligation to protect the rights of the individual that are embodied in the Federal Constitution.” ( Harris v. Reed, 489 U.S. 255, 267 (1989), Stevens, J., concurring; Cobell v. Norton 212 F.R.D. 14, 20, (D.D.C. 2002) [“ the Court is mindful of its obligation to protect the free speech rights of defendants.”])
Moreover, “The Constitution promises liberty to all within its reach, a liberty that includes certain specific rights that allow persons, within a lawful realm, to define and express their identity.” (Obergefell v. Hodges (2015) 135 S. Ct. 2584, 2593) That is not a liberty which ends merely because you do not like or approve my identity, or because you find my identity, my opinions, or beliefs wrong. And where the political process will not act to protect fundamental rights to speech, to religion, it is the duty of the court to protect those rights even for those whose beliefs and opinions do repel the majority:
The dynamic of our constitutional system is that individuals need not await legislative action before asserting a fundamental right. The Nation’s courts are open to injured individuals who come to them to vindicate their own direct, personal stake in our basic charter. An individual can invoke a right to constitutional protection when he or she is harmed, even if the broader public disagrees and even if the legislature refuses to act.
(Obergefell v. Hodges (2015) 135 S. Ct. 2584, 2605.). The issues raised by the Virginia Values Act (the “VVA”) concern not merely speech and religion, but speech and religion which touches upon the most fundamental values as human beings and fundamental rights as those within the protection of the Constitution. As Justice Kennedy explained in arguing that same-sex marriage was protected by the constitution:
[T]he right to personal choice regarding marriage is inherent in the concept of individual autonomy. This abiding connection between marriage and liberty is why Loving invalidated interracial marriage bans under the Due Process Clause. See 388 U.S., at 12, 87 S.Ct. 1817 ; see also Zablocki, supra, at 384, 98 S.Ct. 673 (observing Loving held “the right to marry is of fundamental importance for all individuals”). Like choices concerning contraception, family relationships, procreation, and childrearing, all of which are protected by the Constitution, decisions concerning marriage are among the most intimate that an individual can make. See Lawrence, supra, at 574, 123 S.Ct. 2472. Indeed, the Court has noted it would be contradictory “to recognize a right of privacy with respect to other matters of family life and not with respect to the decision to enter the relationship that is the foundation of the family in our society.” Zablocki, supra, at 386, 98 S.Ct. 673.
(Obergefell v. Hodges, 135 S. Ct. 2584, 2599 (2015).) The VVA (as applied to Amici) seeks not merely to give space to one opinion but to foreclose all others. The constitutional privileges and obligations of the courts which led to Obergefell establishing a right to same-sex marriage, likewise give protection to those who disagree with the decision, whose religious beliefs or conscience conclude differently. Indeed, the very importance and sensitivity of the subject and the importance to all involved is precisely why this Court must protect those interests:
As Stromberg and Lovell demonstrate, there are some purported interests — such as a desire to suppress support for a minority party or an unpopular cause, or to exclude the expression of certain points of view from the marketplace of ideas — that are so plainly illegitimate that they would immediately invalidate the rule. The general principle that has emerged from this line of cases is that the First Amendment forbids the government to regulate speech in ways that favor some viewpoints or ideas at the expense of others. See Bolger v. Youngs Drug Products Corp., 463 U.S. 60, 65, 72 (1983); Consolidated Edison Co. v. Public Service Comm’n, 447 U.S. 530, 535-536 (1980); Carey v. Brown, 447 U.S. 455, 462-463 (1980); Young v. American Mini Theatres, Inc., 427 U.S. 50, 63-65, 67-68 (1976) (plurality opinion); Police Department of Chicago v. Mosley, 408 U.S. 92, 95-96 (1972).
(City Council v. Taxpayers for Vincent, 466 U.S. 789, 804 (1984)) In the act of protecting the minority position, the Court protects the dignity of those persons as human beings: “our basic concept of the essential dignity and worth of every human being — a concept at the root of any decent system of ordered liberty. ” (Dun & Bradstreet, Inc. v. Greenmoss Builders, Inc. (1985) 472 U.S. 749, 769 [citation and internal quotation marks removed])
This dignity is upheld by means of the Court prohibiting the political branches from forbidding certain opinions and dictating others. In fact, by forbidding restrictions on speech – even unpopular speech — the Court upholds the legitimacy of the political branches by maintaining the democratic and republican ideals.
First, where citizens conclude that they cannot speak, that they cannot influence, they will begin to conceive of the government not as representative of them but as a tyranny that rules over them.
Second, the presupposition of a democratic system is that you have the same moral value as me: we are “created equal” and have equal merit to voice our opinions and give our vote. To the extent we have the power to shut-up or shut-down our fellow citizens using the power of the government, we undermine the legitimacy of the government.
Third, it protects the right to hear ideas with which I currently disagree:
The constitutional guarantee of free speech “serves significant societal interests” wholly apart from the speaker’s interest in self-expression. F irst National Bank of Boston v. Bellotti, 435 U.S. 765, 776 (1978). By protecting those who wish to enter the marketplace of ideas from government attack, the First Amendment protects the public’s interest in receiving information. See Thornhill v. Alabama, 310 U.S. 88, 102 (1940); Saxbe v. Washington Post Co., 417 U.S. 843, 863-864 (1974) (POWELL, J., dissenting).
Pacific Gas Elec. Co. v. Public Util. Comm’n (1986) 475 U.S. 1, 8. It is because the issues raised by this appeal are of such importance to the people on all sides that the Court’s obligation is to make room for speech and religion (even if we will hear things which distress us):
If the topic of debate is, for example, racism, then exclusion of several views on that problem is just as offensive to the First Amendment as exclusion of only one. It is as objectionable to exclude both a theistic and an atheistic perspective on the debate as it is to exclude one, the other, or yet another political, economic, or social viewpoint
Rosenberger v. Rector & Visitors of University of Virginia (1995) 515 U.S. 819, 831. The First Amendment is offended when anyone is kept from “marketplace”.
It is that public marketplace, unregulated by the government (in almost all circumstances) that provides the response to those who readily support the law in question. Rather than obtaining government power to forbid my opponent to speak, the sides are to go to their fellow citizens (however much they think the other wrong) and persuade them. Likewise, they can both go to the public and persuade them: Do not patronize that photographer, do not buy books from that publisher, do not hire that painter, because they advocate things which should offend us all.
But the government may not do so.
The parties herein before the Court contend that the Virginia Values Act, however well meaning, however good for the greatest number, is also precisely the sort of law – when applied to these parties – which offends against the Constitution and which this Court has no choice but to strike down as applied to appellant and as applied to these amici of the Court.
 The literature upon conflict, tolerance, social organization is immense. Plato and Aristotle, opined on the issue. Hammurabi and the Bible law out rules for what may and may not be done or thought. The issues at stake involve political theory, law, psychology (individual and social), et cetera. To provide an example of some contemporary overview of these issues as involved with legal one could perhaps start here: Pluralism and the Law, ed. Arend Soeteman and editor First Name editor Last Name or author special case (Dordrecht: Springer International Publishing, 2001), 1.
 “Finding oneself is a misnomer: a self is not found but made.” Jacques Barzun, From Dawn to Decadence(Harper Collins: New York 1972), 785 *****
 See, e.g., Carole M. Cusack, ed., Religion, Sexuality, and Spirituality: Critical Concepts in Religious Studies(New York: Routledge, 2016), 1; Mark Jordan, “Spiritual, Sexual—and Religious?,” Harvard Divinity Bulletin (Autumn/Winter 2019), https://bulletin.hds.harvard.edu/spiritual-sexual-and-religious/.
 Soko Morinaga, “Celibacy: The View of a Zen Monk from Japan,” Vatican, accessed July 15, 2021, https://www.vatican.va/roman_curia/congregations/cclergy/documents/rc_con_cclergy_doc_01011993_zen_en.html.
 Stephanie Kramer, “Polygamy Is Rare Around the World and Mostly Confined to a Few Regions,” Pew Research, December 7, 2020, https://www.pewresearch.org/fact-tank/2020/12/07/polygamy-is-rare-around-the-world-and-mostly-confined-to-a-few-regions/.
 Benedikt Eckhardt, “Meals in the Cults of Cybele and Attis,” in The Eucharist – Its Origins and Contexts, ed. David Hellholm and Dieter Sänger, vol. 3, Near Eastern and Graeco-Roman Traditions, Archeology (Tübingen: Mohr Siebeck, 2017), 1779-94.
 Deuteronomy 22:5.
 Erin Blakemore, “There Are Only Two Shakers Left in the World,” Smithsonian Magazine, January 6, 2017, https://www.smithsonianmag.com/smart-news/there-are-only-two-shakers-left-world-180961701/.
 “Decision” herein means one’s moral valuation of human sexuality. No inference is made that one chooses their sexual desires as one would choose a pair of shoes. Obergefell v. Hodges (2015) 135 S. Ct. 2584, 2596 (“ Only in more recent years have psychiatrists and others recognized that sexual orientation is both a normal expression of human sexuality and immutable.”)
 See for example, The Atlantic at least obliquely raised a question about mandatory reporting laws for child pornography (Alice Dreger, “What Can Be Done About Pedophilia?” The Atlantic, August 26, 2013, https://www.theatlantic.com/health/archive/2013/08/what-can-be-done-about-pedophilia/279024/.) And the substance of the article was responded to by The National Review (Wesley Smith, “Normalizing Pedophila 2,” The National Review, August 27, 2013, https://www.nationalreview.com/human-exceptionalism/normalizing-pedophilia-2-wesley-j-smith/) The government permitted speech which would be at troubling to many and perhaps overwhelmingly unthinkable to others. The government then permitted a response. We could provide examples pertaining to slavery and racism.
 “We see this in the fact that things which were borne for centuries are now declared to be unbearable ….It is tempting for those out of sympathy with this turn to see it simply in the light of illusions; to see authenticity, or the affirmation of sensuality, as simply egoism and the pursuit of pleasure, for example; or to see the aspiration to self-expression exclusively in the light of consumer choice. It is tempting on the other side for proponents of the turn to affirm the values of the new ideal as though they were unproblematic, cost-free and could never be trivialized. Both see the turn as a move within a stable, perennial game. For the critics, it involves the embracing of vices which were and are the main threats to virtue; for the boosters, we have reversed age-old forms which were and are mode of oppression.” Charles Taylor, A Secular Age (Cambridge, Mass.: Belknap Press of Harvard University Press, 2007), 480.
Security Alert: Peshawar (Pakistan), Online Threats Against Religious Minorities, ‘Blasphemers’
 “Lèse Majesté: Watching what you say (and type) abroad” 8/29/2019 | Report OSAC Analysis
 Rousseau, general will
 It must be noted that such psychological distress is mutual. The sides have each issued an anathema upon the other. Each side sincerely believes the other benighted. And each side can justify the infliction of psychological distress upon the other with the justification that the other “deserves” to feel bad.
Freedom of speech “is essential to our democratic form of government.” Janus v. Am. Fed’n of State, Cnty., & Mun. Emps., Council 31, 138 S. Ct. 2448, 2464 (2018). That freedom prohibits the government from “regulat[ing] speech based on its substantive content or the message it conveys.” Rosenberger v. Rector & Visitors of Univ. of Va., 515 U.S. 819, 828 (1995). And as a corollary, it ensures that the government “may not favor one speaker over another.” Id.
Introduction to Amicus brief filed by 34 Senators in favor of the petition of Capital Hill Baptist Church.
There is bill pending in the California legislature which would declare the Christian sexual ethic (sexual expression is permissible only within the context of a marriage between one-man and one-woman and that all other sexual expression is prohibited to Christians)
Courts, including in California, have recognized the practice of sexual orientation change efforts as a commercial service, and service. Therefore, claims that sexual orientation change efforts are effective in changing an individual’s sexual orientation, may constitute unlawful, unfair, or fraudulent business practices under state consumer protection laws. This bill intends to make clear that sexual orientation change efforts are an unlawful practice under California’s Consumer Legal Remedies Act.
(i) (1) “Sexual orientation change efforts” means any practices that seek to change an individual’s sexual orientation. This includes efforts to change behaviors or gender expressions, or to eliminate or reduce sexual or romantic attractions or feelings toward individuals of the same sex.
Under the text of the law, it appears that selling a Bible in the State of California could constitute a violation of the CLRA. You can find the text and status of that bill here:
What follows below is a preliminary analysis of the Constitutionality of the proposed bill (this is just a draft of an analysis; and, I need to say — because of other lawyers! — this is not intended as legal advice; if anyone has a question concerning the legality of anything, please contact a lawyer who can give you particularized advise — all things in the law are fact-dependent, and there is rarely “a right answer):
But, someone may wish to see some of the analysis which underlies these sorts of circumstances. The “commenter” below will be a Christian group who will be posting a comment to the legislative analysis. I suspect the final comment will undergo editing, addition and subtraction before it is in final (nothing in the law every goes on the first draft; we’ll re-write an email ten times):
The Proposed Law Regulates Core Speech, Not “Commercial Speech”
The legislative analysis wrongfully assumes the expression at issue as “commercial speech”. Speech is not “commercial speech” simply because there is the exchange of money. If that were so, every the government could regulate the content of every book simply because the book is offered for sale:
The fact that such items are sold rather than distributed free of charge or simply displayed does not affect their status as protected speech. See, e.g., Lakewood v. Plain Dealer Pub. Co., 486 U.S. 750, 756 n.5, 108 S. Ct. 2138, 100 L. Ed. 2d 771 (1988) (“Of course, the degree of First Amendment protection is not diminished merely because the newspaper or speech is sold rather than given away.”); ISKCON of Potomac, Inc. v. Kennedy, 61 F.3d 949, 953-54, 314 U.S. App. D.C. 63 (D.C. Cir. 1995) (“[E]xpressive materials do not lose their First Amendment protection merely because they are offered for sale. . . . Indeed, the [Supreme] Court long ago reminded us ‘that the pamphlets of Thomas Paine were not distributed free of charge.'”) (quoting Murdock v. Pennsylvania, 319 U.S. 105, 111, 63 S. Ct. 870, 87 L. Ed. 1292 (1943)). Accordingly, part of Mr. Enten’s activity — the display and sale of buttons that express his own personal political beliefs is constitutionally protected speech.
Enten v. District of Columbia (D.D.C. 2009) 675 F. Supp. 2d 42, 50. And:
Similarly, expressive materials do not lose their First Amendment protection merely because they are offered for sale. See, e.g., Virginia State Bd. of Pharmacy v. Virginia Citizens Consumer Council, Inc., 425 U.S. 748, 761, 48 L. Ed. 2d 346, 96 S. Ct. 1817 (1976) (“Speech … is protected even though it is carried in a form that is “sold’ for profit ….”) (citing cases). Indeed, the Court long ago reminded us “that the pamphlets of Thomas Paine were not distributed free of charge.” Murdock v. Pennsylvania, 319 U.S. 105, 111, 87 L. Ed. 1292, 63 S. Ct. 870 (1943).
ISKCON of Potomac, Inc. v. Kennedy (D.C. Cir. 1995) 61 F.3d 949, 953-54, 314 U.S. App. D.C. 63
Commercial speech is “expression related solely to the economic interests of the speaker and its audience. Virginia Pharmacy Board v. Virginia Citizens Consumer Council, 425 U.S. 748, 762 (1976); Bates v. State Bar of Arizona, 433 U.S. 350, 363-364 (1977); Friedman v. Rogers, 440 U.S. 1, 11 (1979).” Central Hudson Gas & Elec. Corp. v. Public Service Commission (1980) 447 U.S. 557, 562-63.
As the federal courts have recognized, under California law, the nub of commercial speech is that the speech being regulated is solely a proposed commercial transaction and nothing more.
For example, in William O’Neil & Co., Inc. v. Validea.com Inc, et al (C.D. Cal. 1992) 202 F. Supp. 2d 1113, plaintiff sued defendant under California law for selling a book which discussed plaintiff’s concepts for financial investment. Plaintiff argued the book and the advertising for the book were commercial speech and thus its claims were governed by the commercial speech standard. The court rejected that argument as follows:
As a preliminary matter, Plaintiffs have argued that Defendants’ speech — both the book itself and the advertising material promoting it — is entitled to less protection under the First Amendment because it is “commercial speech.” Plaintiffs are incorrect, at least for purposes of a commercial misappropriation claim: this is not commercial speech. ” ‘Commercial speech’ has special meaning in the First Amendment context. Although the boundary between commercial and noncommercial speech has yet to be clearly delineated, the ‘core notion of commercial speech’ is that it ‘does no more than propose a commercial transaction.'” Hoffman, 255 F.3d at 1184 (quoting Bolger v. Youngs Drug Prods. Corp., 463 U.S. 60, 66, 77 L. Ed. 2d 469, 103 S. Ct. 2875 (1983)).
The Market Gurus is a book that analyzes the investment strategies of well-known financial analysts and stock pickers. It does not “propose a commercial transaction” and is therefore not commercial speech. Because it is not commercial speech, the book is entitled to the full panoply of First Amendment protections. Hoffman, 255 F.3d at 1185-86 (speech at issue not “commercial speech,” and therefore entitled to full First Amendment protection); cf. Downing v. Abercrombie & Fitch, 265 F.3d 994, 1002 & n.2 (9th Cir. 2001) (Abercrombie’s catalog, which used the plaintiff’s photograph without permission to promote its clothing, was “commercial in nature and, therefore, not entitled to the full First Amendment protection”).
Moreover, even though the advertising promoting The Market Gurus proposes that the target of the advertising buy the book, and in that sense proposes a commercial transaction, Cher makes clear that, to the extent this advertising is “merely an adjunct of the protected publication and promotes only the protected publication,” it is entitled to First Amendment protection to the same extent as the underlying publication. Cher, 692 F.2d at 639; accord Montana v. San Jose Mercury, 34 Cal.App.4th 790, 796 (1995) (newspaper had a right to advertise itself by republishing a front page sports story that featured celebrity Joe Montana because underlying story was protected by First Amendment); New Kids on the Block v. News America Publishing, Inc., et al., 745 F. Supp. 1540, 1546 (C.D. Cal. 1990) (“California courts have specifically allowed incidental commercial exploitation of a public figure’s name and likeness in the context of a publication’s advertising activities.”) (citing Guglielmi v. Spelling-Goldberg Productions, 25 Cal.3d 860, 873, 160 Cal. Rptr. 352, 603 P.2d 454 (1969)). Therefore, because the book cover, flyleaf, and other material advertising The Market Gurus is “an adjunct” of The Market Gurus, it is protected to the same extent as the book itself.
Id. at p. 1119. If an advertisement for a book about money being sold for money does not constitute “commercial speech”, then speech which concerns matters of the greatest personal moment (and even though the legislature and the instant commenter disagree about what should be said about the matter of human sexuality, we both agree of that the speech of grave public and personal importance).
Thus, a law which sought to regulate advertising speech by drug manufacturers based upon the fact that it advertised a particular position as to drugs was found to be a content-based restriction on speech and thus found to be unconstitutional:
On its face, Vermont’s law enacts content- and speaker-based restrictions on the sale, disclosure, and use of prescriber-identifying information. The provision first forbids sale subject to exceptions based in large part on the content of a purchaser’s speech. For example, those who wish to engage in certain “educational communications,” § 4631(e)(4), may purchase the information. The measure then bars any disclosure when recipient speakers will use the information for marketing. Finally, the provision’s second sentence prohibits pharmaceutical manufacturers from using the information for marketing. The statute thus disfavors marketing, that is, speech with a particular content. More than that, the statute disfavors specific speakers, namely pharmaceutical manufacturers. As a result of these content- and speaker-based rules, detailers cannot obtain prescriber-identifying information, even though the information may be purchased or acquired by other speakers with diverse purposes and viewpoints. Detailers are likewise barred from using the information for marketing, even though the information may be used by a wide range of other speakers. For example, it appears that Vermont could supply academic organizations with prescriber-identifying information to use in countering the messages of brand-name pharmaceutical manufacturers and in promoting the prescription of generic drugs. But § 4631(d) leaves detailers no means of purchasing, acquiring, or using prescriber-identifying information. The law on its face burdens disfavored speech by disfavored speakers.
Any doubt that § 4631(d) imposes an aimed, content-based burden on detailers is dispelled by the record and by formal legislative findings. As the District Court noted, “[p]harmaceutical manufacturers are essentially the only paying customers of the data vendor industry”; and the almost invariable rule is that detailing by pharmaceutical manufacturers is in support of brand-name drugs. 631 F. Supp. 2d, at 451. Vermont’s law thus has the effect of preventing detailers–and only detailers–from communicating with physicians in an effective and informative manner. Cf. Edenfield v. Fane, 507 U.S. 761, 766, 113 S. Ct. 1792, 123 L. Ed. 2d 543 (1993) (explaining the “considerable value” of in-person solicitation). Formal legislative findings accompanying § 4631(d) confirm that the law’s express purpose and practical effect are to diminish the effectiveness of marketing by manufacturers of brand-name drugs. Just as the “inevitable effect of a statute on its face may render it unconstitutional,” a statute’s stated purposes may also be considered. United States v. O’Brien, 391 U.S. 367, 384, 88 S. Ct. 1673, 20 L. Ed. 2d 672 (1968). Here, the Vermont Legislature explained that detailers, in particular those who promote brand-name drugs, convey messages that “are often in conflict with the goals of the state.” 2007 Vt. Laws No. 80, § 1(3). The legislature designed § 4631(d) to target those speakers and their messages for disfavored treatment. “In its practical operation,” Vermont’s law “goes even beyond mere content discrimination, to actual viewpoint discrimination.” R. A. V. v. St. Paul, 505 U.S. 377, 391, 112 S. Ct. 2538, 120 L. Ed. 2d 305 (1992). Given the legislature’s expressed statement of purpose, it is apparent that § 4631(d) imposes burdens that are based on the content of speech and that are aimed at a particular viewpoint.
Act 80 is designed to impose a specific, content-based burden on protected expression. It follows that heightened judicial scrutiny is warranted. See Cincinnati v. Discovery Network, Inc., 507 U.S. 410, 418, 113 S. Ct. 1505, 123 L. Ed. 2d 99 (1993) (applying heightened scrutiny to “a categorical prohibition on the use of newsracks to disseminate commercial messages”); id., at 429, 113 S. Ct. 1505, 123 L. Ed. 2d 99 (“[T]he very basis for the regulation is the difference in content between ordinary newspapers and commercial speech” in the form of “commercial handbills . . . . Thus, by any commonsense understanding of the term, the ban in this case is ‘content based’ ” (some internal quotation marks omitted)); see also Turner Broadcasting System, Inc. v. FCC, 512 U.S. 622, 658, 114 S. Ct. 2445, 129 L. Ed. 2d 497 (1994) (explaining that strict scrutiny applies to regulations reflecting “aversion” to what “disfavored speakers” have to say). The Court has recognized that HN3Go to this Headnote in the case. the “distinction between laws burdening and laws banning speech is but a matter of degree” and that the “Government’s content-based burdens must satisfy the same rigorous scrutiny as its content-based bans.” United States v. Playboy Entertainment Group, Inc., 529 U.S. 803, 812, 120 S. Ct. 1878, 146 L. Ed. 2d 865 (2000). Lawmakers may no more silence unwanted speech by burdening its utterance than by censoring its content. See Simon & Schuster, Inc. v. Members of N. Y. State Crime Victims Bd., 502 U.S. 105, 115, 112 S. Ct. 501, 116 L. Ed. 2d 476 (1991) (content-based financial burden); Minneapolis Star & Tribune Co. v. Minnesota Comm’r of Revenue, 460 U.S. 575, 103 S. Ct. 1365, 75 L. Ed. 2d 295 (1983) (speaker-based financial burden).
The First Amendment requires heightened scrutiny whenever the government creates “a regulation of speech because of disagreement with the message it conveys.” Ward v. Rock Against Racism, 491 U.S. 781, 791, 109 S. Ct. 2746, 105 L. Ed. 2d 661 (1989); see also Renton v. Playtime Theatres, Inc., 475 U.S. 41, 48, 106 S. Ct. 925, 89 L. Ed. 2d 29 (1986) (explaining that “ ‘content-neutral’ speech regulations” are “those that are justified without reference to the content of the regulated speech” (internal quotation marks omitted)). A government bent on frustrating an impending demonstration might pass a law demanding two years’ notice before the issuance of parade permits. Even if the hypothetical measure on its face appeared neutral as to content and speaker, its purpose to suppress speech and its unjustified burdens on expression would render it unconstitutional. Ibid. Commercial speech is no exception. See Discovery Network, supra, at 429-430, 113 S. Ct. 1505, 123 L. Ed. 2d 99 (commercial speech restriction lacking a “neutral justification” was not content neutral). A “consumer’s concern for the free flow of commercial speech often may be far keener than his concern for urgent political dialogue.” Bates v. State Bar of Ariz., 433 U.S. 350, 364, 97 S. Ct. 2691, 53 L. Ed. 2d 810 (1977). That reality has great relevance in the fields of medicine and public health, where information can save lives.
Sorrell v. IMS Health, Inc. (2011) 564 U.S. 552, 563-566.
In short, AB2943 seeks to regulate speech based upon its content. The proposed law would in effect make it actionable to sell a book which proposes a traditional Christian understanding of human sexuality.
The analogy to court’s decision in Pickup v. Brown (9th Cir. 2014) 740 F.3d 1208 fails. As the Pickup court noted,
SB 1172 does just one thing: it requires licensed mental health providers in California who wish to engage in “practices . . . that seek to change a [minor’s] sexual orientation” either to wait until the minor turns 18 or be subject to professional discipline. Thus, SB 1172 regulates the provision of mental treatment, but leaves mental health providers free to discuss or recommend treatment and to express their views on any topic.
Id., at 1223.
The proposed law goes well beyond the provision of licensed therapy (which by virtue of the license comes directly under State supervision). In fact, the proposed law governs what SB1172 did not: it governs the speech of all persons; it does not regulate the issuance of a state license. It prohibits the discussion of human sexuality if there is any exchange of money. AB 2843 prohibits between adults; it is not limited to psychotherapy provided to minors.
Therefore, the analysis of this proposed law must not be done under the rubric of commercial speech, but rather as a species of government censorship of views which a majority of California legislatures disapprove. However, the purpose of the First Amendment is to protect the minority rights of those who advocate positions which are not approved by the majority or the government.
The Proposed Law is a Content Based Restriction on Speech
As noted above, this is not a regulation of commercial speech but an unquestionable content-based restriction on speech. As such, the law may stand only if it can pass strict scrutiny review.
As an initial matter, the legislature is well-aware of the scope of significance of First Amendment protection for speech. Thus, when the Supreme Court found a congressional ban films which depicted animal cruelty, the Court began its analysis:
The First Amendment provides that “Congress shall make no law . . . abridging the freedom of speech.” “[A]s a general matter, the First Amendment means that government has no power to restrict expression because of its message, its ideas, its subject matter, or its content.” Ashcroft v. American Civil Liberties Union, 535 U.S. 564, 573, 122 S. Ct. 1700, 152 L. Ed. 2d 771 (2002) (internal quotation marks omitted). Section 48 explicitly regulates expression based on content: The statute restricts “visual [and] auditory depiction[s],” such as photographs, videos, or sound recordings, depending on whether they depict conduct in which a living animal is intentionally harmed. As such, § 48 is “ ‘presumptively invalid,’ and the Government bears the burden to rebut that presumption.” United States v. Playboy Entertainment Group, Inc., 529 U.S. 803, 817, 120 S. Ct. 1878, 146 L. Ed. 2d 865 (2000) (quoting R. A. V. v. St. Paul, 505 U.S. 377, 382, 112 S. Ct. 2538, 120 L. Ed. 2d 305 (1992); citation omitted).
“From 1791 to the present,” however, the First Amendment has “permitted restrictions upon the content of speech in a few limited areas,” and has never “include[d] a freedom to disregard these traditional limitations.” Id., at 382-383, 112 S. Ct. 2538, 120 L. Ed. 2d 305These “historic and traditional categories long familiar to the bar,” Simon & Schuster, Inc. v. Members of N.Y. State Crime Victims Bd., 502 U.S. 105, 127, 112 S. Ct. 501, 116 L. Ed. 2d 476 (1991) (Kennedy, J., concurring in judgment)–including obscenity, Roth v. United States, 354 U.S. 476, 483, 77 S. Ct. 1304, 1 L. Ed. 2d 1498 (1957), defamation, Beauharnais v. Illinois, 343 U.S. 250, 254-255, 72 S. Ct. 725, 96 L. Ed. 919 (1952), fraud, Virginia Bd. of Pharmacy v. Virginia Citizens Consumer Council, Inc., 425 U.S. 748, 771, 96 S. Ct. 1817, 48 L. Ed. 2d 346 (1976), incitement, Brandenburg v. Ohio, 395 U.S. 444, 447-449, 89 S. Ct. 1827, 23 L. Ed. 2d 430 (1969) (per curiam), and speech integral to criminal conduct, Giboney v. Empire Storage & Ice Co., 336 U.S. 490, 498, 69 S. Ct. 684, 93 L. Ed. 834 (1949) –are “well-defined and narrowly limited classes of speech, the prevention and punishment of which have never been thought to raise any Constitutional problem,” Chaplinsky v. New Hampshire, 315 U.S. 568, 571-572, 62 S. Ct. 766, 86 L. Ed. 1031 (1942).
United States v. Stevens (2010) 559 U.S. 460, 468. The speech regulated by AB2943 falls into none of those categories. The proposed law is without question a content-based restriction on speech and thus is presumptively invalide, “Content-based regulations are presumptively invalid,” R. A. V. v. St. Paul, 505 U.S. 377, 382, 120 L. Ed. 2d 305, 112 S. Ct. 2538 (1992), and the Government bears the burden to rebut that presumption.” United States v. Playboy Entertainment Group (2000) 529 U.S. 803, 817.
To overcome the presumption of unconstitutionality, the statute — even if it furthers an important governmental interest — must pass strict scrutiny review:
Sexual expression which is indecent but not obscene is protected by the First Amendment; and the federal parties do not submit that the sale of such materials to adults could be criminalized solely because they are indecent. The Government may, however, regulate the content of constitutionally protected speech in order to promote a compelling interest if it chooses the least restrictive means to further the articulated interest. We have recognized there is a compelling interest in protecting the physical and psychological well-being of minors. This interest extends to shielding minors from the influence of literature that is not obscene by adult standards. Ginsberg v. New York, 390 U.S. 629, 639-640 (1968); New York v. Ferber, 458 U.S. 747, 756-757 (1982). The Government may serve this legitimate interest, but to withstand constitutional scrutiny, “it must do so by narrowly drawn regulations designed to serve those interests without unnecessarily interfering with First Amendment freedoms. Hynes v. Mayor of Oradell, 425 U.S., at 620; First National Bank of Boston v. Bellotti, 435 U.S. 765, 786 (1978).” Schaumburg v. Citizens for a Better Environment, 444 U.S. 620, 637 (1980). It is not enough to show that the Government’s ends are compelling; the means must be carefully tailored to achieve those ends.
Sable Communications v. FEC (1989) 492 U.S. 115, 126. And while there are without question persons who do not want to hear the speech proffered by commenter, the distaste of some hearers is no basis upon which the government may forbid the speech, “‘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, even where no less restrictive alternative exists. We are expected to protect our own sensibilities “simply by averting [our] eyes.'” Cohen v. California, 403 U.S. 15, 21, 29 L. Ed. 2d 284, 91 S. Ct. 1780 (1971); accord, Erznoznik v. Jacksonville, 422 U.S. 205, 210-211, 45 L. Ed. 2d 125, 95 S. Ct. 2268 (1975).” United States v. Playboy Entertainment Group (2000) 529 U.S. 803, 813.
The Proposed Law Infringes Upon Exercise of Commenter’s Religious Expression
The proposed law directly infringes upon the religious expression of commenter. The legislative analysis admits that the proposed restriction on speech will in fact infringe upon religious practice and speech, albeit in a disingenuous manner, Here, the bill does not apply to non-commercial activities, and therefore would seem to exempt religious and moral counselors who are unpaid.”
First, the act as proposed would restrict the sale of books which offer speech which does not endorse the legislature’s preferred position. This bill, as proposed, would make it actionable to sell a Christian Bible within the State of California. For example, 1 Corinthians 6:9-11 both prohibits Christians from engaging in certain sexual acts and states that a fact of Christianity is the transformation from the practice of those acts:
9 Or do you not know that the unrighteous will not inherit the kingdom of God? Do not be deceived: neither the sexually immoral, nor idolaters, nor adulterers, nor men who practice homosexuality, 10 nor thieves, nor the greedy, nor drunkards, nor revilers, nor swindlers will inherit the kingdom of God. 11 And such were some of you. But you were washed, you were sanctified, you were justified in the name of the Lord Jesus Christ and by the Spirit of our God.
1 Corinthians 6:9–11 (ESV). We concede that the proposed speech is obnoxious to the proponents of this law. But it is precisely the fact that the speech and religious practice is obnoxious is why the First Amendment protection is critical: “The First Amendment is a limitation on government, not a grant of power.” ISKON, 505 U.S. at 695 (Kennedy, J., concurring in judgment).
Moreover, Christian teaching on human sexuality would arguably be actionable. Christian pastors are most often paid for their work; indeed, many if not most, engage in the practice of acting as a pastor as their full-time vocation. In that office, they both make public statements and give private counsel on any number of matters, including Christian sexual ethic.
They are in fact paid for the provision of this “service”, even if they are not paid separately and above from the work of providing counsel to an individual in a discrete transaction.
The First Amendment prohibits the government from telling private citizens “what they must say.” Agency for Int’l Dev. v. Alliance for Open Soc. Int’l, Inc., 133 S. Ct. 2321, 2327 (2013). It is undisputed that the Colorado Civil Rights Commission (the “Commission”) does not apply CADA to ban (1) an African-American cake artist from refusing to create a cake promoting white-supremacism for the Aryan Nation, (2) an Islamic cake artist from refusing to create a cake denigrating the Quran for the Westboro Baptist Church, and (3) three secular cake artists from refusing to create cakes opposing same- sex marriage for a Christian patron. App. 78a; App. 297a-App. 331a.
Neither should CADA ban Jack Phillips’ polite declining to create a cake celebrating same-sex marriage on religious grounds when he is happy to create other items for gay and lesbian clients. See Obergefell v. Hodges, 135 S. Ct. 2584, 2607 (2015) (“[T]hose who adhere to religious doctrines, may continue to advocate with utmost, sincere conviction that, by divine precepts, same-sex marriage should not be condoned.”).
This is interesting, because it was not the refusal to sell anything: rather, the issue is whether the government can compel speech.
Because of the artistry associated with custom cakes, Phillips also honors God through his work by declining to use his creative talents to design and create cakes that violate his religious beliefs. App. 282-283a, ¶¶ 57-58, 62. This includes cakes with offensive written messages and cakes celebrating events or ideas that violate his beliefs, including cakes celebrating Halloween (a decision that costs him significant revenue), anti-American or anti- family themes, atheism, racism, or indecency. App. 283-284a, ¶¶ 61, 63-64. He also will not create cakes with hateful, vulgar, or profane messages, or sell any products containing alcohol. Id., ¶¶ 59, 61.
Consistent with this longstanding practice, Phillips also will not create cakes celebrating any marriage that is contrary to his understanding of biblical teaching. App. 276-277a, ¶¶ 21, 25. As a Christian, Phillips believes that God ordained marriage as the sacred union between one man and one woman, a union that exemplifies the relationship of Christ and His Church. App. 274- 275a, ¶¶ 10-15. And Phillips’ religious conviction compels him to create cakes celebrating only marriages that are consistent with his understanding of God’s design. App. 275-277a, ¶¶16-22, 25. For this reason, Phillips politely declined to design and create a cake celebrating Respondents Craig’s and Mullins’ same-sex wedding, App. 287a, ¶ 78, but offered to make any other cake for them, id., ¶ 79.
This was not bigotry: he did not refuse to sell them anything. He merely treated the couple the same as he did every other patron: there were some-things Jack would not say. Irrespective of how one feels about the underlying wedding, one should be concerned if the government can force speech under threat of penalty. Think of it this, would you like President Obama or President Trump (or both) telling you what you had to say? You can’t pick the guy “on your side”.