Archive for the ‘#freedomofconscience’ Tag

It’s Not Freedom if You Can’t Exercise It, Part 4   Leave a comment

Clarence Thomas concurred with the majority opinion, writing separately on Jack Phillips’ free speech claim. I like Thomas’ opinions because they are very clearly worded and he doesn’t devolve into legalese.

He begins by agreeing that the Colorado Civil Rights Commission violated Jack Phillips’ right to freely exercise his religion when it treated his religious objections differently from other bakers’ secular objections in a similar case (Jack), showing overt hostility to Phillips’ religion.

Image result for image of wedding cakeThe SCOTUS did not address the free-speech claim because there were uncertainties in the record. Phillips claims he refused to create a custom wedding case to celebrate their wedding case because he would have refused to bake a custom wedding cake for any same-sex couple. The customers asserted that he refused to even sell them a premade cake, which he denies. (Note to self – when controversy comes your way, hit record on your cell phone so there’s no question of what was said). The Colorado Court of Appeals resolved that factual dispute in Phillips’ favor, describing his conduct as a refusal to ‘design and create a cake to celebrate a same-sex wedding.” The Commission’s order required Phillips to sell “any product he would sell to heterosexual couples” including custom wedding cakes, yet even after that description, the Court of Appeals concluded that Phillips’ conduct was not expressive and was not protected speech, reasoning that an outside observer would conclude that Phillips was merely complying with Colorado’s public-accommodations law, not expressing a message, and that Phillips could post a disclaimer to that effect … flouting “bedrock principles of our free-speech jurisprudence and would justify virtually any law that compels individuals to speak. It should not pass without comment.”

The 1st Amendment is applicable to the States through the 14th Amendment and it prohibits that abridgment of “freedom of speech.” In Hurley it was ruled that public-accommodation laws do not target speech, but instead prohibit the act of discrimination against individuals in the provision of publicly available goods, privileges and services.” But sometimes protected speech is impacted and then the 1st Amendment has had primacy. In Hurley, the Court unanimously held that the law requiring the sponsor of a St. Patrick’s Day parade to include a parade unit of gay, lesbian and bisexual Irish Americans violated the sponsors right to free speech because parades are a form of expression and application of the public-accommodations law altered the expressive content of the parade by forcing the sponsor to add a new unit, suggesting that the sponsor agreed that people of gay, lesbian or bisexual orientation have as much claim to unqualified social acceptance as heterosexuals and would tend to imply that their participation “merits celebration.” The SCOTUS rejected the notion that governments can mandate “thoughts or statements acceptable to some groups or indeed all people” as the “antithesis” of free speech. “The Constitution limits the government’s authority to restrict or compel ‘expressive conduct’. The ability to choose what not to say is a primary manifestation of free speech.

Philliips considers himself a cake artist, symbolized by the logo for Masterpiece Cakeshop being a painter’s palate with a paintbrush and baker’s whisk. He designs the cakes, he sits down with each couple to consult on the design. He delivers the cake and sometimes stays and interacts with the guests at the wedding. Guests often recognize his work and seek out his bakery afterward. To him, a wedding cake inherently communicates that a wedding has occurred, a marriage has begun, and the couple should be celebrated. But it’s not just Phillips who believes that. Society has viewed wedding cakes by the symbols since before the American Civil War.

“Accordingly, Phillips’ creation of custom wedding cakes is expressive. The use of his artistic talents to create a well-recognized symbol that celebrates the beginning of a marriage clearly communicates a message.”

Colorado’s public-accommodations law would alter the expressive content of Phillips’ message. Forcing Phillips to make custom wedding cakes for same-sex marries requires him to, at the very least, acknowledge that same-sex weddings are “weddings” and suggest that they should be celebrated – “the precise message he believes his faith forbids.”

Thomas gave due consideration to prior rulings by the Supreme Court showing that the government is not permitted to compel speech or “expressive conduct”. He also addressed the argument that Colorado’s law allowed it to compel Phillips’ speech to prevent the same-sex couple from being denigrated, made to feel inferior or subjected to humiliation, frustration or embarrassment.

“These justifications are completely foreign to our free-speech jurisprudence. States cannot punish protected speech because some group finds it offensive, hurtful, stigmatic, unreasonable, or undignified. ‘If there is a bedrock principle underlying the First Amendment, it is that the government may not prohibit the expression of an idea simply because society finds the idea itself offensive or disagreeable.” Again, Thomas gives a lot of consideration to prior SCOTUS rulings.

He also points out what Phillips actually said to the respondents in this case. “I will make your birthday cakes, shower cakes, sell you cookies and brownies, I just don’t make cakes for same sex weddings.” And, then a black justice points out the Court allows racist, demeaning and threatening speech toward blacks. Ruling that the Constitution protects same-sex marriage does not immediately require that those who express a different view are not protected in expressing those views.

Thomas engages in a little “I told you so”, noting that he warned during Obergefell that the Court’s decision would “inevitably come into conflict with religious liberty as individuals are confronted with demands to participate in and endorse civil marriages between same-sex couples.” He predicts further conflict unless the freedom of speech principle is upheld going forward.

Part 5

 

 

It’s Not Freedom if You Can’t Exercise It, Pt. 2   Leave a comment

I like to believe that nothing really shocks me anymore, but that Elena Kagan concurred with the majority in the Masterpiece Cake case surprises me. I’m even somewhat surprised that Justice Breyer joined in her concurrence.

 

“It is a general rule that (religious and philosophical) objects do not allow business owners and other actors in the economy and in society to deny protected persons equal access to goods and services under a neutral and generally applicable public accommodations law” … unless state actors show hostility toward religious views, which the Colorado Civil Rights Commission did.

Image result for masterpiece cakeshopKagan noted the came of William Jack, who sought cakes with images that conveyed dispproval of same-sex marriage, along with religious text. Bakers refused to make them and their refusal was upheld by the Colorado Civil Rights Commission. In the case of Jack Phillips the Commission deemed his beliefs to be offensive, but a “principled rationale for the difference in treatment cannot be based on the government’s own assessment of offensiveness.”

Kagan found that the proper basis for distinguishing the cases was obvious. “The Colorado Anti-Discrimination Act (CADA) makes it unlawful for a place of public accommodation to deny ‘the full and equal enjoyment’ of goods and services to individuals based on certain characteristics, including sexual orientation and creed.” The three bakers in the Jack case would not have made a cake denigrating gay people no matter who requested it. Mr. Jack was not signaled out. Phillips did refuse the bake the cake for the gay couple because of their sexual orientation. Kagan reasoned that a plain reading of the Colorado law would have allowed the Commission to rule against Phillips on that basis, but they didn’t avail themselves of that option.

Okay, Kagan is a statist who is fine with using government to force people to violate their beliefs so long as government doesn’t show its underwear in the process.

Justice Gorsuch has a different view and we’ll get to that in a moment.

Offensive is in the eye of the beholder and forcing someone to compromise their religious beliefs curtails their freedom of conscience. Why is that somehow something we think is a good idea?

Under this argument, you could arrive that the idea that a black hip hop cover artist is required to sing Slim Shady songs for a bunch of skinheads unless the government fails to correctly cite its own law requiring that. Is the proper citing of the law somehow magic? Does it turn that which is sin into something that doesn’t mar the soul of the participant?

 

Because freedom of conscience is probably the most fundamental right we have. It is the right to be us and to have the fruits of our creativity to reflect what we want them to reflect and not what others demand we respect. And it’s not freedom if you’re afraid to exercise it.

Part 3

It’s Not Freedom If You Can’t Exercise It, Pt 1   Leave a comment

I’m a writer. Well, if you read this blog, you know that. I write a lot of non-fiction and I’ve published several novels. Writing is what I do.

I don’t write “Christian” books, but I am a Christian who writes. My faith works its way into my writing whether I mean it to or not because my faith is a part of me on a deep fundamental level. It doesn’t just dictate my surface actions on Sundays, but all of my actions, even the unthinking nouns and conjunctions.

From the moment I heard about Jack Phillips, I understood what he was going through. He was asked by a gay couple to make a custom wedding cake. Phillips explained that he would gladly make them cupcakes or cookies, but his faith teaches him that marriage is between a man and a woman and he could not participate in their wedding by making a cake that celebrated what the Bible teaches is sin.

I used to provide wedding photography as a ministry. If you couldn’t afford it or it involved hiking up a middling-sized Alaska mountain, I was up for it. People usually just reimbursed me for the film, processing, and printing. I stopped not long after I did a friend’s rock-climbing birthday. My friend is a lesbian and I had no problem celebrating her birthday. But she showed those photos to another lesbian we worked with and that woman asked me if I’d do her wedding. Fortunately, the wedding was in Hawaii so I could plead the cost. When I asked a lawyer about it, he said “You’re playing with fire. The day will come when someone is going to require you to violate your beliefs … do it for free … and take you to court if you refuse.” I let it be known that I was too busy with my writing to do photography for anyone not an official member of my church. True, but not so much that I wouldn’t have found the time for someone who needed it.

It is impossible to take pictures at a wedding or bake the cake and not be seen by others as approving that wedding. And whether you like it or not, the Bible is clear that homosexual activity is not something Christians can participate in. 1 Corinthians tells us to “Flee sexual immorality”, not put a nice set of clothes and attend a celebration to sanctify it.

Related imageThe jury is still out. Photography might be considered a passive recording of the event rather than an artistic expression. When I heard Phillips argument before the Supreme Court, I thought seriously about what would I do if someone came along and forced me to write something I truly knew would violate my beliefs.

Because I am both a non-fiction and fictional writer, I am somewhat like Jack Phllips. Sometimes I’m creating generic content for the masses and sometimes I creating a highly artistic enterprise. I would never say gay people can’t or shouldn’t buy my books. I suspect gay people have read my newspaper and magazine articles and blog posts. But what if one of my lesbian acquaintances came to me and wanted to hire me to write a narrative for her wedding? About 30 years ago, I actually did that for a couple who asked me to. I haven’t done it since, but I haven’t advertised that I would do that sort of thing. So, what would I do?

I wouldn’t decline the Christian couple who asked. I might not decline the non-Christian couple, although they might not like what I write. I would be very circumspect about doing that sort of service for a Christian couple where one or more of them were divorced from a prior spouse. It would depend on the circumstances. I would deny a Christian marrying a non-Christian because I think that is a Scriptural example of sexual immorality. And, I would decline a homosexual couple for the same reason. I should go see if my legal insurance is paid up. I just might need it.

The Supreme Court of the United States ruled this week that the Colorado Human Rights Commission discriminating against Jack Phillips because it was blatantly hostile to his faith, considered it be “despicable” and “merely rhetorical and [sic] insincere”, comparing the invocation of his sincerely held religious beliefs to defenses of slavery and the Holocaust. Such a sentiment “is inappropriate for a Commission charged with the solemn responsibility of fair and neutral enforcement of … a law that protects discrimination on the basis of religion as well as sexual orientation.”  Because no subsequent attempt was made to disavow those statements, Justice Kennedy concluded that “the Court cannot avoid the conclusion that these statements cast doubt on the fairness and impartiality of the Commissioner’s adjudication of Phillips’ case.”

Kennedy also noted that the Civil Rights Division had considered the refusal of other bakers to create cakes with images that conveyed disapproval of same-sex marriage, along with religious text and “found that the baker acted lawfully in refusing service.” The treatment of the conscience-based refusals in these other three cases with the Commission’s treatment of Phillips’ object was built on a presupposition that any message on the wedding cake would be attributed to the customers rather than the baker, but the Division never actually addressed that issue in its findings. One of the salient points for the Colorado Commission was that the bakeries were willing to sell other items to the customers, but then they dismissed as irrelevant Phillips’ willingness to sell “birthday cakes, shower cakes, cookies and brownies” to gay and lesbian couples. The Commission had treated the other bakers’ conscience-based objects as legitimate, but treated his as illegitimate, thus judging the validity of his religious beliefs themselves … deeming his beliefs to be offensive.

“The Commission was obliged under the Free Exercise Clause to proceed in a manner neutral toward and tolerant of Phillips’ religious beliefs. The Constitution ‘commits government itself to religious tolerance, and upon even slight suspicion that proposals for state intervention stem from animosity to religion or distrust of its practices, all officials must pause to remember their own high duty to the Constitution and to the rights it secures'” (citing Church of Lukumi Babalu Aye).

Kennedy, writing the majority opinion found the Commission’s hostility to Phillips’ beliefs “inconsistent with the First Amendment’s guarantee that our laws be applied in a manner that is neutral toward religion.”

The SCOTUS left open the door for “cases of other circumstances” to further elaborate these arguments in the courts, reminding those future courts that “these disputes must be resolved with tolerance, without undue disrespect to sincere religious beliefs, and without subjecting gay persons to indignities when they seek goods and services in an open market.”

Contrary to popular media depiction, this was not a “narrow” decision. When fewer than a third of the justices dissented from the majority opening, it isn’t a narrow decision. 7 to 2 is practically a repudiation … especially when you consider that Elena Kagan — not exactly a conservative or constructionist juror — concurred with the majority.

 

More on that in my next post

Part 2

What is the Greatest Threat to Freedom of Conscience?   Leave a comment

My friend Josh Bennett over at Patriot’s Lament knocked one out of the park with this article, so I am blatantly borrowing it. I get my anarchy fix on Saturday mornings on KFAR-660 AM, which you can access through streaming if you’re not in the broadcast area of Fairbanks, Alaska. You can also check out PL’s You-Tube channel, Radio Free Fairbanks, where they repost the 3-hour programs to be listened to whenever you like. The show’s been going for seven years now, so there’s lots of liberty talk from an anarcho-capitalist point of view to refresh your mind with. Lela

The State Will Gladly Protect You from Freedom of Conscience

Josh Bennett

For hundreds of years, western cultures have been refining what is known as Freedom of Conscience.
One of the outcomes of this refinement is Freedom of Speech, a Liberty that is relatively new to the human political experience.
Not long ago, being critical of a government, for instance, could get you killed by that government. Merely speaking out of turn or having critical thought towards the State religion meant torture or death.

But, we have advanced through time to understand that free thought and critical speech is something that a free people must protect and encourage. Thomas Jefferson went as far as to say that repressing Freedom of Conscience was a “Sin against God”.

 

Suppressing Freedom of Conscience though, was and is seen by the State as self-preservation.

 

Today, we have access to information that only 20 years ago was other-worldly. Anyone with a cell phone can post a rant or share information to literally the whole world. Because of this information access, people take the information they get from the State influenced mainstream media with a grain of salt, or immediately disbelieve it, and usually, rightfully so.

 

This is dangerous for the State’s propaganda machine, but the State realizes what is even more dangerous to it, would be for the State to appear to suppress it. Whether on the Left or the Right of the political spectrum, people tend to cherish what we now call, “Free Speech”, and rightfully so.

 

So what is the State to do? What States always do. Make the people fear their Liberty more than Itself.

 

Instead of immediately passing laws suppressing and/or silencing free speech, the State is manipulating the political fears people have to make them feel threatened by what they may think is opposing speech to their beliefs. And the fear the State has spread between opposing political speech has resulted in what not long ago would have been mocked as fairytale superstition.

 

“Words can hurt you. People who disagree with you want to hurt you. You need your feelings protected against all invasion. Dissenting speech or thought is violence towards you.”
Instead of using dissenting views from our own to refine our beliefs and convictions, and to encourage discussion for the betterment of overall society, we are not only growing to fear Opposition of Thought, we want to be protected from it.

Image result for image of nazi railcar

Enter the State.

From legislating pronouns to aggressive threats of imprisonment for incorrect thinking, the State has moved in against Freedom of Conscience to suppress nonconformists. And some cheer this behavior by the State, seen to protect them from all harm. Others see it as a shield to advance their own political agenda opposition-free.
But, as Bastiat explained, while all wish to live at the expense of the State, the State lives at the expense of all.

 

No one’s political or personal thoughts or actions are safe from this aggression by the State. While the State will pick winners and losers in the short run, it’s only a matter of time before the State silences everyone.

 

Before you cheer the State for destroying your opposition’s Freedom of Conscience, remember when your opposition is gone, you will be alone, and no one will be there when the State marches you into the railcar that you have built.

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