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The Supreme Court Case That Exemplifies Our Culture War Blindness
Political tribalism prevents us from seeing free speech issues clearly.
I stopped reciting the Pledge of Allegiance in 7th grade. By then the practice had begun to seem cultish to me and I wanted nothing to do with it. This deeply upset some of my teachers, who considered it a flagrant affront to our nation.
But they couldn’t force me.
Whether anyone liked it or not, my refusal to pledge allegiance was an embodiment of our American principles. No matter how disgusted and disrespected someone may feel, and no matter how terrible anyone thinks it is, I can’t be compelled to express things I do not believe. It is my right to refuse, and the First Amendment guarantees it.
This is precisely the principle undergirding the Supreme Court decision this summer in 303 Creative v. Elenis, which hinged on website designer Lorie Smith contending that her religious beliefs prevented her from designing sites for same-sex weddings.
When I imagined Smith being compelled to create a website for a gay couple’s wedding, I immediately imagined myself being forced to say the Pledge of Allegiance at school. Both would be simple and straightforward cases of unconstitutionally compelled speech. The Court’s decision in Smith’s favor—ruling that “the United States is a rich and complex place where all persons are free to think and speak as they wish, not as the government demands”—protects all of us from imposition on our ability to express ourselves.
But you wouldn’t know that from much of the commentary the case has gotten. From pieces in the Los Angeles Times and The Wall Street Journal to statements from the Arizona Attorney General and the legal director of the ACLU, a disconcerting amount of rhetoric regarding the ruling has fixated on the particulars of the case and completely missed the guiding thread.
I strongly disagree with Smith’s views on same-sex marriage. But the Constitution or constitutional law can’t work on the basis of my or anyone else’s preferences or opinions on such issues. The thing about principles is that they must be consistent, and that sometimes means swallowing hard pills. I recognize that Smith has a right to her views, no matter how backward I might find them—and I know that protecting her right to those views also protects my right to my own.
So why can’t so many journalists and commentators see the underlying principle at play with 303 Creative?
The short answer: The culture war is blinding.
The supercharged nature of our politics keeps us from seeing or understanding the fundamental ideas underlying many of our conflicts. If certain details are implicated—if, for example, the dispute involves historically marginalized groups who have long fought for equal rights, as in 303 Creative—we have trouble keeping things straight when they would otherwise be crystal clear. The culture war and our political tribalism keep us from understanding how forcing a web designer to express approval for gay marriage exercises precisely the same principle as (to borrow an example from David French) forcing an artist to paint a flattering portrait of a white supremacist.
This kind of blindness is dangerous. Losing sight of the overarching, long-standing principles of freedom and free expression that underpin our laws and norms makes it easier to lose them altogether. This hurts everyone, including the groups that 303 Creative dissenters believe they’re fighting for.
Many argued that the majority opinion in 303 Creative, with its effective repudiation of Colorado’s Anti-Discrimination Act, gives businesses constitutional license to discriminate. In her dissent, Justice Sonia Sotomayor explicitly compared the ruling to pre-civil rights era statutes that “protected” businesses with signs saying, for instance, “no dogs or Jews allowed.”
But, on closer analysis, the case did not turn on discrimination against customers. In hearings before the district court, all parties agreed that Smith was “willing to work with all people regardless of classifications such as race, creed, sexual orientation, and gender.” She would have had no issue creating custom graphics and websites for clients regardless of who they were—say, for a gay couple opening a shop.
What Smith refused to do was to actively build a website expressing a belief in conflict with her religious convictions, specifically as they pertained to same-sex marriage. As Justice Neil Gorsuch wrote in the majority opinion, “Colorado does not just seek to ensure the sale of goods or services on equal terms. It seeks to use its law to compel an individual to create speech she does not believe.”
The consistent, far-ranging application of the idea inherent in Colorado’s Anti-Discrimination Act would not only be practically untenable in a free society but would also create a world no one would want to live in—whatever their politics. As Gorsuch noted, “Taken seriously, that principle would allow the government to force all manner of artists, speechwriters, and others whose services involve speech to speak what they do not believe on pain of penalty.”
That is simply going too far.
I didn’t know it when I was in 7th grade, but my refusal to pledge allegiance also had a Supreme Court precedent. In 1942, two Jehovah’s Witnesses in West Virginia refused to recite the Pledge, citing their religious convictions. This was in direct violation of a Board of Education requirement, which penalized students with expulsion if they didn’t comply.
The conflict led to the Supreme Court case West Virginia Board of Education v. Barnette, where, in 1943, the Court ruled in favor of the girls’ right to refuse. In the majority opinion, Justice Robert Jackson wrote:
If there is any fixed star in our constitutional constellation, it is that no official, high or petty, can prescribe what shall be orthodox in politics, nationalism, religion or other matters of opinion, or force citizens to confess by word or act their faith therein.
This point crystalizes the principle against compelled speech upon which 303 Creative also stands. Our inability or unwillingness to recognize this principle is detrimental not just to our judgment but to future judgments on cases of national and constitutional significance. Imagine the Barnette case having gone the other way and the Supreme Court allowing schools the power to force students like me, 55 years later, to pledge allegiance to the flag. What other expression would that allow them to compel?
It is not so difficult to imagine some other state applying “anti-discrimination laws” to include religious or political convictions. Those who enthusiastically support state laws that enforce the design of gay marriage websites might well have issue with similarly-framed laws that would mandate, for instance, a Proud Boys-themed wedding website. And anyone looking to argue that these are categorically different kinds of expression has their work cut out for them, legally and logically.
As the Court wrote, “the Nation’s answer is tolerance, not coercion.” And tolerance extends, as it did in Barnette, to the very critical right to not speak—to not voice ideas in conflict with one’s convictions. That’s a vital principle to maintain even when we might disagree with the particulars of a person’s position. If we forgo that in one case due to culture war blindness, we’re doomed to forgo it across the board.
Angel Eduardo is senior writer and editor at FIRE (The Foundation for Individual Rights and Expression).
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