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Draft Brief on First Amendment Protection

10 Friday Mar 2023

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Below you will see the current rough draft of a friend of the court brief we will file next week in the appeal of the district court decision in Chiles v Salazar.

RULE 29 STATEMENT

Under Federal Rule of Appellate Procedure 29(a)(2), the Associations of Certified Biblical Counselors (“ACBC”) files this amicus curiae brief with the consent of all parties. No counsel for any party authored this brief in whole or in part, and no person or entity, other than ACBC and its counsel, made a monetary contribution intended to fund the preparation or submission of this brief.

INTRODUCTION

         The Association of Certified Biblical Counselors represents a group of Christian counselors who provide counsel and training in and consistent with the traditional practice of the Christian religion. Admittedly, the instant regulation is not directly applicable to ACBC’s members and their work. However, due to the similarities in appearance between instruction in the practice of the Christian religion in a one-on-one setting and the practice of psychotherapy, that is, one person speaking to another about a circumstance and seeking help based upon the knowledge of a counselor, there is a concern that the rules which are imposed upon Christian therapists through licensing regulation may eventually be imposed upon Christians who are providing training in the practice of the Christian outside of the licensed relationship. Further, ACBC’s counselors are chilled in their speech for fear of similar prosecution for practicing their faith-based counseling. These concerns are heightened on the basis of the novel theory advanced by the State of Colorado and approved by the lower court that speech may be censored in the name of “harm.”

         The Christian religion entails doctrines of self-denial in many areas of life, including sexual conduct. This counsel of self-denial is the sort of counsel which the State of Colorado has determined is “harmful.” Christians are given responsibility to encourage one-another in efforts at chastity, which is what the State of Colorado has forbidden to Christian therapists under the guise of regulation of a profession.

         Accordingly, ACBC has an interest in this law being struck down in its current form.

THE LOWER COURT GIVES AND TAKES AWAY

         The lower court provides a rehearsal of the well-known rules respecting the protection of speech, of the wrongs of content-based restrictions on speech, and the related rules applicable. Since those rules are well-known to this court and have been adequately presented by Ms. Chiles’ attorneys, amicus will assume such rules for purpose of this argument and move its attention to the manner in which the lower court creates a sweeping new power of the government to censor speech while at the same time giving the appearance of merely applying current law.

         The lower court in reaching its unsupported conclusion first affirmed the rules protecting speech but then eviscerated those rules by means of a logical misstep and a fundamental misreading of existing law. This is then bolstered by the creation of a new basis for censorship made appealing on the ground that it favors the current opinion of the political majority.

         What has happened in this case is that the lower court has structured a new legal theory which creates the power of political majority to censor speech on the ground that it is “harmful.” ‘Harmful’ speech has never been approved as a touchstone for constitutional jurisprudence. Since what constitutes harmful speech will always be speech the majority disapproves, were the lower court’s approach accepted, the political majority can lay waste to any subject it deems ‘harmful’, thereby banning all utterance it disapproves. That is simply not the law.

THE LOWER COURT ERRS BY MISAPPLYING PRECEDENT

The crux of the lower court’s decision is found in this paragraph:

And Defendants do not—and cannot—dispute that Ms. Chiles speaks to her clients during counseling sessions (See ECF No. 45 at 23-24). But speech made in professional contexts is not always pure speech. See EMW Women’s Surgical Ctr., P.S.C. v. Beshear, 920 F.3d 421, 429 (6th Cir. 2019) (“Casey and [National Institute of Family and Life Advocates] recognize that First Amendment heightened scrutiny does not apply to incidental regulation of professional speech that is part of the [professional] practice . . ..”)

The key word in this analysis is “incidental”.  That word becomes a rhetorical pivot which is turned to eradicate First Amendment protections.

First, the court must consider what was actually upheld in EMW. In EMW, the government defined certain minimal disclosures to be made by a health care provider before obtaining informed consent for a medical procedure: “The Ultrasound Informed Consent Act—is an informed-consent statute.” (EMW Women’s Surgical Ctr. v. Beshear (6th Cir. 2019) 920 F.3d 421, 446)

This is similar to a lawyer being required to make certain disclosures about billing rates and reimbursement for costs prior to offering a client a retainer agreement. Yes, the decisions have different stakes, but defining the minimal precontract disclosures is a regulation of the profession. For instance, Colorado Rules of Professional Conduct, Rule 1.5(b), requires the attorney to make a series of disclosures for a contingent fee agreement to be enforceable.

In fact, the second case cited by the lower court in support of the power of “incidental regulation of professional speech” (Ohralik v. Ohio State Bar Assn (1978) 436 U.S. 447) actually concerned precontractual communications between a lawyer and a potential client:

In Bates v. State Bar of Arizona, 433 U.S. 350 (1977), this Court held that truthful advertising of “routine” legal services is protected by the First and Fourteenth Amendments against blanket prohibition by a State. The Court expressly reserved the question of the permissible scope of regulation of “in-person solicitation of clients — at the hospital room or the accident site, or in any other situation that breeds undue influence — by attorneys or their agents or `runners.'” Id., at 366. Today we answer part of the question so reserved, and hold that the State — or the Bar acting with state authorization — constitutionally may discipline a lawyer for soliciting clients in person, for pecuniary gain, under circumstances likely to pose dangers that the State has a right to prevent.

Ohralik v. Ohio State Bar Assn (1978) 436 U.S. 447, 448-49 The Ohralik Court did not uphold a law which regulated the content of the lawyer’s counsel given during the professional relationship as the lower court did. Thus Ohralik concerned solely precontract speech.

Ohralik then gave as support a citation to a series of cases which permitted regulation of speech. Each of the cases cited by the Ohralik court concerned either precontract speech (such as a misleading securities’ report) or speech soliciting a contract to engage in behavior which was illegal independent of the solicitation:

Moreover, “it has never been deemed an abridgment of freedom of speech or press to make a course of conduct illegal merely because the conduct was in part initiated, evidenced, or carried out by means of language, either spoken, written, or printed.” Giboney v. Empire Storage Ice Co., 336 U.S. 490, 502 (1949). Numerous examples could be cited of communications that are regulated without offending the First Amendment, such as the exchange of information about securities, SEC v. Texas Gulf Sulphur Co., 401 F.2d 833 (CA2 1968), cert. denied, 394 U.S. 976 (1969), corporate proxy statements, Mills v. Electric Auto-Lite Co., 396 U.S. 375 (1970), the exchange of price and production information among competitors, American Column Lumber Co. v. United States, 257 U.S. 377 (1921), and employers’ threats of retaliation for the labor activities of employees, NLRB v. Gissel Packing Co., 395 U.S. 575, 618 (1969). See Paris Adult Theatre I v. Slaton, 413 U.S. 49, 61-62 (1973).

(Ohralik v. Ohio State Bar Assn (1978) 436 U.S. 447, 456)

When one understands what Ohralik actually permits and curtails, one can see that the lower court’s use of Ohralik goes well beyond what that Court actually held:

As Defendants argue, speech made in a professional context—particularly in the context of licensed professional counseling—is distinguishable from, for example, political speech (ECF No. 45 at 23). Ms. Chiles admits that she is a licensed professional counselor with a graduate degree in clinical mental health, and that her speech is made in the course of her work as a professional counselor (ECF No. 1 at 29-31 ¶¶ 104, 108). “[I]t has never been deemed an abridgment of freedom of speech . . . to [regulate] a course of [professional] conduct . . . merely because the conduct was in part initiated, evidenced, or carried out by means of language, either spoken, written, or printed.” Ohralik, 436 U.S. at 456 (quotations omitted).

The lower court misuse of Ohralik flows from its failure to provide a full citation to what the Court actually wrote. When one compares the language from Ohralik and the abridgement provided by the lower court here, the distinction is obvious. Neither EMW nor Ohralik, nor even the cases cited by Ohralik, stand for the proposition that the government has the power to ban pure speech given during the course of a professional relationship after the contract has been formed. The cases stand for the a quite different proposition — that a professional must make certain disclosure prior to entering into a contract.

That distinction between regulating precontract disclosure concerning the nature of services which could or would be rendered, and regulating the content of a therapeutic relationship are fundamentally different concerns. If Colorado required a therapist to disclose to a potential client that the therapist held to Alderian or Freudian or Jungian or Client Centered Therapy or CBT or (any number of other models and techniques) prior to entering a contractual relationship, that regulation may be similar to EMW or Ohralik. If Colorado required Ms. Chiles to disclose she was a Christian who holds certain positions on human sexuality, that may be permissible. But when Colorado moves to a law prohibiting Ms. Chiles from relying upon her Christian commitments during the therapeutic relationship it undoubtedly violates the First Amendment.

THE LOWER COURT ERRED BY BANNING SPEECH ON THE BASIS OF “HARM”

The Supreme Court has already explained this issue in a thorough and incontrovertible manner:

The most basic of those principles is this: “[A]s a general matter, … 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). There are of course exceptions. ” ‘From 1791 to the present,’ … 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.’ ” United States v. Stevens, 559 U.S. ––––, ––––, 130 S.Ct. 1577, 1584, 176 L.Ed.2d 435 (2010) (quoting R.A.V. v. St. Paul,505 U.S. 377, 382–383, 112 S.Ct. 2538, 120 L.Ed.2d 305 (1992) ). These limited areas—such as obscenity, Roth v. United States,354 U.S. 476, 483, 77 S.Ct. 1304, 1 L.Ed.2d 1498 (1957), incitement, Brandenburg v. Ohio,395 U.S. 444, 447–449, 89 S.Ct. 1827, 23 L.Ed.2d 430 (1969)(per curiam), and fighting words, Chaplinsky v. New Hampshire,315 U.S. 568, 572, 62 S.Ct. 766, 86 L.Ed. 1031 (1942) —represent “well-defined and narrowly limited classes of speech, the prevention and punishment of which have never been thought to raise any Constitutional problem,” id., at 571–572, 62 S.Ct. 766. Last Term, in Stevens, we held that new categories of unprotected speech may not be added to the list by a legislature that concludes certain speech is too harmful to be tolerated. Stevens concerned a federal statute purporting to criminalize the creation, sale, or possession of certain depictions of animal cruelty. See 18 U.S.C. § 48 (amended 2010). The statute covered depictions “in which a living animal is intentionally maimed, mutilated, tortured, wounded, or killed” if that harm to the animal was illegal where the “the creation, sale, or possession t[ook] place,” § 48(c)(1). A saving clause largely borrowed from our obscenity jurisprudence, see Miller v. California,413 U.S. 15, 24, 93 S.Ct. 2607, 37 L.Ed.2d 419(1973), exempted depictions with “serious religious, political, scientific, educational, journalistic, historical, or artistic value,” § 48(b). We held that statute to be an impermissible content-based restriction on speech. There was no American tradition of forbidding the depiction of animal cruelty—though States have long had laws against committing it. The Government argued in Stevens that lack of a historical warrant did not matter; that it could create new categories of unprotected speech by applying a “simple balancing test” that weighs the value of a particular category of speech against its social costs and then punishes that category of speech if it fails the test.Stevens, 559 U.S., at ––––, 130 S.Ct., at 1585. We emphatically rejected that “startling and dangerous” proposition. Ibid. “Maybe there are some categories of speech that have been historically unprotected, but have not yet been specifically identified or discussed as such in our case law.” Id., at ––––, 130 S.Ct., at 1586. But without persuasive evidence that a novel restriction on content is part of a long (if heretofore unrecognized) tradition of proscription, a legislature may not revise the “judgment [of] the American people,” embodied in the First Amendment, “that the benefits of its restrictions on the Government outweigh the costs.” Id., at ––––, 130 S.Ct., at 1585.

(Brown v. Entertainment Merchants Assn. (2011) 564 U.S. 786, 790-92)

A supposed rationale that speech is “harmful” as a justification for banning it, in any context, simply has not received the traction except in the lower court.

MINORS HAVE FIRST AMENDMENTS TO SPEAK AND HEAR

Colorado may then argue, we are not merely banning “harmful” speech, but we are banning speech which is “harmful” specifically to minors. Apparently, this claim is based on the minor being too delicate to hear the words. But adding the word “minors” to the equation does not move the constitutional analysis in favor of censorship. The basic principle at issue here was affirmed by the United States Supreme Court 48 years ago:

It is well settled that a State or municipality can adopt more stringent controls on communicative materials available to youths than on those available to adults. See, e.g., Ginsberg v. New York, 390 U.S. 629 (1968). Nevertheless, minors are entitled to a significant measure of First Amendment protection, see Tinker v. Des Moines School Dist., 393 U.S. 503 (1969), and only in relatively narrow and well-defined circumstances may government bar public dissemination of protected materials to them. See, e.g., Interstate Circuit, Inc. v. City of Dallas, 390 U.S. 676, 1968); Rabeck v. New York, 391 U.S. 462  (1968).

(Erznoznik v. City of Jacksonville (1975) 422 U.S. 205, 212-13) Since that time, a number of courts have developed and clarified the principle that minors are entitled to First Amendment protection for the information they receive.  Those cases affirm that minors have robust First Amendment rights.

In 2000, the city of Indianapolis sought to forbid minors from access to video games which the city council deemed “harmful”. The Seventh Circuit rejected that statute. In one part the Court explained:

The grounds must be compelling and not merely plausible. Children have First Amendment rights. Erznoznik v. City of Jacksonville,422 U.S. 205, 212-14, 95 S.Ct. 2268, 45 L.Ed.2d 125 (1975); Tinker v. Des Moines Independent School District,393 U.S. 503, 511-14, 89 S.Ct. 733, 21 L.Ed.2d 731 (1969). This is not merely a matter of pressing the First Amendment to a dryly logical extreme. The murderous fanaticism displayed by young German soldiers in World War II, alumni of the Hitler Jugend, illustrates the danger of allowing government to control the access of children to information and opinion. Now that eighteen-year-olds have the right to vote, it is obvious that they must be allowed the freedom to form their political views on the basis of uncensored speech before they turn eighteen, so that their minds are not a blank when they first exercise the franchise. And since an eighteen-year-old’s right to vote is a right personal to him rather than a right that is to be exercised on his behalf by his parents, the right of parents to enlist the aid of the state to shield their children from ideas of which the parents disapprove cannot be plenary either. People are unlikely to become well-functioning, independent-minded adults and responsible citizens if they are raised in an intellectual bubble.

(American Amusement Machine Ass’n v. Kendrick (7th Cir. 2001) 244 F.3d 572, 576-77) The State of Illinois gathered more “evidence” for its restriction on video games:

Dr. Craig Anderson, a psychologist and professor at Iowa State University, testified on behalf of the defendants. Dr. Anderson summarized research, including his own, regarding the relationship between minors’ exposure to violent video games and aggressive thoughts and behavior. Based on this research, Dr. Anderson testified that “it seems clear that exposure to violent video games increases aggressive behavior, aggressive thinking, physiological arousal, aggressive feelings, and is also associated with a decrease in prosocial behavior.”

(Entertainment Software Ass’n. v. Blagojevich (N.D. Ill. 2005) 404 F. Supp. 2d 1051, 1059) More recent research has discredited the opinions of psychologists such as Dr. Anderson on the effects of videogames, but that is the way with science. What does matter is that state statute was unconstitutional, in part because it infringed upon the First Amendment rights of minors:

We think it important first to reaffirm our observation in American Amusement Machine Association v. Kendrick,244 F.3d 572, 576 (7th Cir.2001), that “[c]hildren have First Amendment Rights.” The implication of this observation is that our narrow tailoring inquiry must be broader than the question of whether adults will be affected by the challenged legislation. The Constitution also requires us to ask whether legislation unduly burdens the First Amendment rights of minors. And for good reason — as we observed in AAMA history has shown the dangers of giving too much censorship power to the State over materials intended for young persons. See AAMA, 244 F.3d at 577

(Entertainment Software Ass’n v. Blagojevich (7th Cir. 2006) 469 F.3d 641, 646-47) Since that time, it is commonly held by the courts that such restrictions violation the First Amendment:

The issue of regulating violent video games to minors has been decided in the Seventh and Eighth Circuit, both of which have found that the attempted regulation in those districts violates the First Amendment. Amer. Amusement Mach. Ass’n v. Kendrick,244 F. 3d 572 (7th Cir. 2001), Interactive Digital Software Ass’n v. St. Louis County,329 F.3d 954 (8th Cir. 2003). Several other District Courts have similarly held such acts to be unconstitutional. SeeVideo Software Dealers Ass’n v. Maleng,325 F.Supp.2d 1180 (W.D. Wash. 2004),Entertainment Software Ass’n v. Blagojevich,404 F.Supp.2d 1051 (E.D. Ill. 2005) (“E.S.A.”) (granting preliminary injunction), Video Software Dealers Ass’n v. Schwarzenegger,401 F.Supp 2d 1034 (N.D. Cal. 2005) (granting preliminary injunction).

(Entertainment Software Ass’n v. Granholm (E.D. Mich. 2006) 426 F. Supp. 2d 646, 649-50) The point of such cases is that First Amendment protections are afforded to minors, even in instances where the minor seeks access to speech which the legislature has determined is harmful.

This court should so hold likewise and reverse the lower court.

This is not to say that legislatures cannot prohibit certain types of speech be transmitted to a minor. But that is not what has happened here. Obscene speech can be prohibited on the ground that it is not protected by the First Amendment:

Though we deal here with restrictions not limited to obscenity, we note that obscenity is not within the class of speech protected by the First Amendment. ( Ginsberg v. New York (1968) 390 U.S. 629 [20 L.Ed.2d 195, 88 S.Ct. 1274]; Roth v. United States (1957) 354 U.S. 476 [1 L.Ed.2d 1498, 77 S.Ct. 1304].) The state may adopt a standard of obscenity applicable to minors which is broader than that applicable to adults and which denies minors access to materials to which adults could not be denied access. ( Ginsberg v. New York, supra,390 U.S. 629.) “Nevertheless, minors are entitled to a significant measure of First Amendment protection . . . and only in relatively narrow and well-defined circumstances may government bar public dissemination of protected materials to them. [Citations omitted.]” ( Erznoznik v. City of Jacksonville (1975) 422 U.S. 205, 212-213 [45 L.Ed.2d 125, 133, 95 S.Ct. 2268].) “Speech that is neither obscene as to youths nor subject to some other legitimate proscription cannot be suppressed solely to protect the young from ideas or images that a legislative body thinks unsuitable for them.” ( Erznoznik, supra,422 U.S. at pp. 213-214 [45 L.Ed.2d at p. 133].)

(American Booksellers Assn. v. Superior Court (1982) 129 Cal.App.3d 197, 201) The State of Colorado never found the speech at issue obscene; nor did it ban the speech for all purposes and by all persons: if it were obscene, it could be banned on the ground that it is not protected rather than it is “harmful.”

The Supreme Court has already spoken on this issue has expressly rejected the rationale advanced by Colorado herein:

The California Act is something else entirely. It does not adjust the boundaries of an existing category of unprotected speech to ensure that a definition designed for adults is not uncritically applied to children. California does not argue that it is empowered to prohibit selling offensively violent works to adults —and it is wise not to, since that is but a hair’s breadth from the argument rejected in Stevens. Instead, it wishes to create a wholly new category of content-based regulation that is permissible only for speech directed at children.

That is unprecedented and mistaken. “[M]inors are entitled to a significant measure of First Amendment protection, and only in relatively narrow and well-defined circumstances may government bar public dissemination of protected materials to them.” Erznoznik v. Jacksonville, 422 U.S. 205, 212–213, 95 S.Ct. 2268, 45 L.Ed.2d 125 (1975) (citation omitted). No doubt a State possesses legitimate power to protect children from harm, Ginsberg, supra, at 640–641, 88 S.Ct. 1274; Prince v. Massachusetts, 321 U.S. 158, 165, 64 S.Ct. 438, 88 L.Ed. 645 (1944), but that does not include a free-floating power to restrict the ideas to which children may be exposed. “Speech that is neither obscene as to youths nor subject to some other legitimate proscription cannot be suppressed solely to protect the young from ideas or images that a legislative body thinks unsuitable for them.” Erznoznik, supra, at 213–214, 95 S.Ct. 2268.

(Brown v. Entertainment Merchants Assn. (2011) 564 U.S. 786, 794-95)

In this particular instance, speech which is consistent with the religious and moral traditions of millions of Americans and which has an extensive history would be among the speech which the statute seeks to prohibit. And, if a state can prohibit the speech under the guise of a licensure, the state would then arguably be able to ban any speech by any person by merely exercising the “harmful” standard. The courts have wisely rejected that standard to date. This Court should stand with them.

NEITHER THE POPULARITY OF THE CENSORSHIP NOR THE JUDGE’S OWN MORAL CALCULATION ARE GROUNDS TO BAN SPEECH

It is the duty of the court to protect the individual from the excesses of the political branches, “When a [] regulation or practice offends a fundamental constitutional guarantee, federal courts will discharge their duty to protect constitutional rights.” (Jones v. North Carolina Prisoners’ Union (1977) 433 U.S. 119, 143, Marshall, J., dissenting)

An irony of the instant case which will strike all readers when the cases involving speech to minors is considered below, is that the speech barred today was the speech favored yesterday; and the speech favored today, was speech which the political branches previously sought to suppress. It is an accident in history that we all think we have now reached the stage of full wisdom and truth, and that the speech which a majority favors today is Truth. The First Amendment is in place just because we have never become perfectly wise.

It is the task of the Court to allow the parties to squabble over truth without 51 out of a 100 coming to rest on that which is popular today. Socrates was put to death because a majority of his fellow citizens thought it scandalous to believe the sun was a flaming stone and not a god. The majority is rarely if ever circumspect in its authoritative pronouncements, which is why our courts have seen fit to protect the minority positions.

Here, the State of Colorado could not prohibit all persons from speaking on the subject prohibited by this statute, therefore, it cannot prohibit psychotherapists from speaking on this topic. Or stated otherwise, if the state could prohibit this speech merely because 51% of the legislature found it “wrong” or “hurtful” would mean the legislature could ban any speech if 51% of the legislature agreed.  But the First Amendment is in place precisely because a minority must have the right to speak. There is no need for the courts to protect the speech of the majority, the majority will always get what it wants.

This creates pressure upon any judge. Yet, however much the individual sympathizes with one side in any debate, the duty remains, the obligation imposed by the judicial oath “to administer justice without respect to persons;” a duty to protect the speech and religion of those whom the judge personally finds disagreeable. (Nat’l Review, Inc. v. Mann 140 S. Ct. 344, 347-48 (2019) [“Our decisions protecting the speech at issue in that case and the others just noted can serve as a promise that we will be vigilant when the freedom of speech and the press are most seriously implicated, that is, in cases involving disfavored speech on important political or social issues.”])

         It is no support for the law compelling (or restricting) speech that it is the will of the majority (Wooley v. Maynard, 430 U.S. 705, 715 (1977); National Socialist Party v. Skokie (1977) 432 U.S. 43 [displaying Swastikas protected speech]) It is the minority who most need protection before the Court. 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.”])

         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. (Obergefell v. Hodges, 135 S. Ct. 2584, 2605 (2015))[1]. The Colorado statute concerns speech and religion in a counseling context which touches upon some of the most fundamental values we have as human beings and fundamental rights as those deserving the protection of the Constitution. (Obergefell v. Hodges, 135 S. Ct. 2584, 2599 (2015).) That Colorado may have a laudable goal is no basis upon which it may suppress protected speech. (Billups v. City of Charleston 961 F.3d 673, 683-84, (4th Cir. 2020)). 

         To achieve its stated end, the Colorado statute maintains unconstitutional means: it forbids and compels based upon content.  ((Nat’l Inst. of Family & Life Advocates v. Becerra, 138 S. Ct. 2361, 2371 (2018)) [content-based restrictions offend the First Amendment]) [2]  It unconstitutionally favors one viewpoint and forbids all others. ((Matal v. Tam,137 S. Ct. 1744, 1765-66 (2017) [viewpoint restrictions offend the First Amendment]) By allowing only one viewpoint it seeks to compel speech approved by the government[3]. To fail to speak as the government demands forces one out of the economy and threatens ruin with fines and litigation.

CONCLUSION

         In conclusion, the lower court erred by upholding an unconstitutional ban on protected discourse. Irrespective of the current politics or the court’s own preference, the First Amendment places a wall of separation between the government and quelling the voice of its people. The courts have been stationed upon that wall to protect the speech of the minority, no matter how small, despised, or misguided in the eyes of the court.

[1] The courts have repeatedly affirmed the First Amendment’s limitation on governmental power. ( See, e.g., Thonen v. Jenkins  491 F.2d 722, 723 (4th Cir. 1973) (“‘But, above all else, the First Amendment means that government has no power to restrict expression because of its message, its ideas, its subject matter, or its content.’”); Mainstream Loudoun v. Board of Trustees of Loudoun 2 F. Supp. 2d 783, 795 (E.D. Va. 1998) (“We are therefore left with the First Amendment’s central tenet that content-based restrictions on speech must be justified by a compelling governmental interest and must be narrowly tailored to achieve that end.”))

[2] “Ratified in 1791, the First Amendment provides that Congress shall make no law ‘abridging the freedom of speech.’ Above all else, the First Amendment means that government generally has no power to restrict expression because of its message, its ideas, its subject matter, or its content.’ [Citation.]” (Barr v. American Assn. of Political Consultants, Inc., 140 S. Ct. 2335, 2346 (2020); Holloman ex Rel. Holloman v. Harland (11th Cir. 2004) 370 F.3d 1252, 1264 ((“The Speech Clause of the First Amendment protects at least two separate, yet related, rights: (1) the right to freedom of expression, and (2) the right to be free from compelled expression. United States v. United Foods, Inc.,533 U.S. 405, 410, 121 S.Ct. 2334, 2338, 150 L.Ed.2d 438 (2001).”)

[3] First Amendment prohibits compelled speech. (United States v. United Foods, Inc., 533 U.S. 405, 410 (2001); see, Wooley v. Maynard 430 U.S. 705, 714-15 (1977)) The act of government compulsion as to speech is always demeaning and always wrong. (Janus v. Am. Fed’n of State, Cnty., & Mun. Emps., Council 31 (2018) 138 S. Ct. 2448, 2464 (2018) [“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 landmark free speech cases said that a law commanding “involuntary affirmation” of objected-to beliefs would require “even more immediate and urgent grounds” than a law demanding silence. Barnette, supra, at 633, 63 S.Ct. 1178; see also Riley, supra, at 796–797, 108 S.Ct. 2667 (rejecting “deferential test” for compelled speech claims).”])

303 Creative LLC v Elenis

01 Wednesday Jun 2022

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Currently pending before the Supreme Court is the issue of whether the government can compel a website designer to create “pure speech” on behalf of those persons who espouse issues on human sexuality which contradict the website designer’s religious beliefs. An essay in City Journal explains the matter:

On February 22, the Supreme Court agreed to hear 303 Creative LLC v. Elenis, a case involving a Christian website designer’s refusal, in the face of Colorado’s Anti-Discrimination Act (CADA), to create websites that celebrate same-sex weddings. In doing so, the Court has the opportunity to place in proper order two legal guarantees: protection against government-compelled speech and anti-discrimination on the basis of sexual orientation.

In the prior “public accommodations” cases, such as the Masterpiece Cake case, the First Amendment question was whether the creation of a cake or the arrangement of flowers or taking photographs was protected “speech” under the First Amendment (or whether the sale of the cake was “commerce”).

The 303 case presents a different issue. Here the court concluded the creation of a website was “pure speech”. Therefore, the question was whether the government could compel someone to speak (in this case on the issue of a gay marriage).

The issue accepted by the Supreme Court is:

“Whether applying a public-accommodation law to compel an artist to speak or stay silent violates the free speech clause of the First Amendment.”

You can read the briefs which have been filed in this action, here:

303 Creative LLC v. Elenis

Below, you can read the brief which my office has filed (it has taken much of my time of late).

303 Creative v. Elenis Amicus Brief (3)Download

Analysis of the Decision in 303 Creative

11 Wednesday Aug 2021

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The decision of the 10th Circuit in 303 Creative LLC, et al. v. Elenis, et al. is a remarkable decision for its rejection what should be undisputed constitutional principles. As Ed Whelan wrote in Bonkers Tenth Circuit Ruling Against Free Speech, “It is difficult to imagine a ruling more hostile to free speech.”  The case involved a Christian web developer who said she was unwilling to make a webpage which celebrated a same-sex wedding.

This was not the case of someone who refused to serve a gay customer. The designer specifically stated that it was not the identity of the customer but the content of the message which was the issue: “303 Creative is a for-profit, graphic and website design company; Ms. Smith is its founder and sole member-owner. Appellants are willing to work with all people regardless of sexual orientation. Appellants are also generally willing to create graphics or websites for lesbian, gay, bisexual, or transgender (“LGBT”) customers. Ms. Smith sincerely believes, however, that same-sex marriage conflicts with God’s will.”

The court found that the creation of the website was “speech,” “Appellants’ creation of wedding websites is pure speech.” This is important because in cases such those involving a baker or a florist, there was an issue as to whether the work itself (decorating a cake, arranging flowers) constitutes speech for purposes of the First Amendment. Thus, the speech clause of the First Amendment was unquestionably in play.

Second, the court found that speech at issue also entailed the plaintiff’s religious convictions,  “Ms. Smith holds a sincere religious belief that prevents her from creating websites that celebrate same-sex marriages.”

Free exercise of religion and freedom of speech are guaranteed in First Amendment. Having found speech and religion, it seems that the plaintiff should have easily prevailed. But here, the court found the government could compel speech (and also religious practice).

The First Amendment prohibits compelled speech. (United States v. United Foods, Inc., 533 U.S. 405, 410 (2001); see, Wooley v. Maynard 430 U.S. 705, 714-15, supra) The act of government compulsion as to speech is always demeaning and always wrong. (Janus v. Am. Fed’n of State, Cnty., & Mun. Emps., Council 31 (2018) 138 S. Ct. 2448, 2464 (2018) [“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 landmark free speech cases said that a law commanding “involuntary affirmation” of objected-to beliefs would require “even more immediate and urgent grounds” than a law demanding silence. Barnette, supra, at 633, 63 S.Ct. 1178; see also Riley, supra, at 796–797, 108 S.Ct. 2667 (rejecting “deferential test” for compelled speech claims).”])

Since this case involves compelled speech, it seems she should have won, but she did not.

The court found that the law was a content-based restriction on speech, meaning that it prohibited certain speech based upon the content of that speech. With few very narrow exceptions (such as a true threats), content based restrictions are simply struck down.

And yet, the 303 court found the State of Colorado could compel Ms. Smith to publicly approve same sex marriage (or be barred from being a web-designer in the state), “We hold that CADA [the law at issue] satisfies strict scrutiny, and thus permissibly compels Appellants’ speech.” The decision also compels Ms. Smith to contradict her religious beliefs and participate in a religious rite if she wants to conduct any business in Colorado.

How did this happen? How could a court find that the government can compel speech, forbid other speech and compel religious practice as the cost of doing business in the State of Colorado?

First, Ms. Smith’s solo operation had to be designated as a “public accommodation.”  The statute defines a public accommodation as a business which is open to the public, “any place of business engaged in any sales to the public and any place offering services, facilities, privileges, advantages, or accommodations to the public.” Such a definition runs contrary to the history of the meaning of the phrase “public accommodation.” Public accommodations entail public carriers (like a bus line), public accommodations (like a hotel on the interstate). The concept has a long history in American law and then English common law before that. And it is only recently that solo operators have become “public accommodations.”

But the court did more than turn her into a public accommodation, it actually turned her into a special sort of public accommodation: the monopoly, which by virtue of being a monopoly must be open to the public.

The nature of “public accommodations” and the way in which Ms. Smith became a monopoly will be discussed next.

A Draft Brief on the Importance of the Court Protecting Freedom of Speech and Religion

16 Friday Jul 2021

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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[1]. 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[2], 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[3]. It is undisputed by anyone that human sexual plays a fundamental point in religions. Buddhist monks are monks[4]. A man in Mali may have multiple wives[5], 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[6]. The ancient Hebrews were forbidden to dress as the opposite sex[7]. Shakers lived in a communal life; but also lived celibate lives[8]. 

         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[9]. 

         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.[10]

         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)[11]. 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[12] and lèse majesté[13] around the world. The laws are always popular: A majority constituency is always pleased[14].

         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.[15]

         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. 

[1] 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.

[2] “Finding oneself is a misnomer: a self is not found but made.” Jacques Barzun, From Dawn to Decadence(Harper Collins: New York 1972), 785 *****

[3] 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/.

[4] 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.

[5] 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/.

[6] 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.

[7] Deuteronomy 22:5.

[8] 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/.

[9] “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.”)

[10] 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.

[11] “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.

[12] https://www.osac.gov/Content/Report/8a3d7716-5743-4f14-b430-195206ddb577

Security Alert: Peshawar (Pakistan), Online Threats Against Religious Minorities, ‘Blasphemers’

8/2/2020

[13] “Lèse Majesté: Watching what you say (and type) abroad” 8/29/2019 | Report  OSAC Analysis

https://www.osac.gov/Content/Report/e48a9599-9258-483c-9cd4-169f9c8946f5

[14] Rousseau, general will

[15]  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. 

The State Cannot Give Lesser Protection to Religious Speech than it does to Political Speech

09 Friday Oct 2020

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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.

Proposed California Law AB 2943 “Unlawful business practices: sexual orientation change efforts”

14 Saturday Apr 2018

Posted by in Culture, Psychology, Uncategorized

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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.

And:

(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:

https://leginfo.legislature.ca.gov/faces/billTextClient.xhtml?bill_id=201720180AB2943

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.

Masterpiece Cakeshop

07 Tuesday Mar 2017

Posted by in Apologetics, Culture, Uncategorized

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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.”).

Here’s the rest of the brief

This is interesting, because it was not the refusal to sell anything: rather, the issue is whether the government can compel speech.

More:

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”.