*Another* Solid Win for Free Speech and Religious Liberty (Arizona State Case)

[smac97]

Last month I started a thread discussing a positive development in the 8th Circuit Court of Appeals pertaining to free speech and religious liberty: A Solid Win for Free Speech and Religious Liberty (8th Circuit Case)

It looks like the folks who appreciate these matters (free speech and religious liberty) are on something of a winning streak, since news is out today from the State of Arizona: 

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The Arizona Supreme Court Strikes a Powerful Blow for Free Speech and Religious Freedom
By DAVID FRENCH
September 16, 2019 4:22 PM

Free speech and religious liberty are on a winning streak. Last month the Eighth Circuit Court of appeals ruled that Christian wedding photographers could not be compelled to use their artistic talents to help celebrate same-sex weddings. Today, the Arizona Supreme Court reached a similar holding, this time on behalf of Christian calligraphers and painters Joanna Duka and Breanna Koski. The case, brought by my friends and former colleagues at the Alliance Defending Freedom, is similar to multiple other wedding vendor cases. The plaintiffs do not discriminate on the basis of sexual orientation (they happily serve gay customers). They merely refuse to produce art that advances ideas they find objectionable.

This is what I have been saying for quite a while now.

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Duka and Koski operate a limited liability company called “Brush & Nib Studios.” The company’s Operating Agreement declares its beliefs quite clearly — stating that it will not create “custom artwork that communicates ideas or messages . . . that contradict biblical truth, demean others, endorse racism, incite violence, or promote any marriage besides marriage between one man and one woman, such as same-sex marriage.” As with all these cases, the core question is whether the custom artwork at issue constitutes constitutionally protected speech (the court was interpreting the Arizona constitution, but applied federal free speech precedents). If so, then the state’s demand that the plaintiffs produce art for same-sex marriages constitutes a form of compelled speech, among the most egregious forms of First Amendment violation. Compelled speech violates the fundamental principle that “an individual has autonomy over his or her speech and thus may not be forced to speak a message he or she does not wish to say.”

Again, I've been raising this issue for a while now.  See, e.g., here: Cakes and Compelled Speech: The Saga Continues

And here: The Gay Wedding Cake Conundrum

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The court held that the plaintiffs’ custom wedding calligraphy constituted “pure speech:”

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Each custom invitation created by Duka and Koski contains their hand-drawn words, images, and calligraphy, as well as their hand-painted images and original artwork. Additionally, Duka and Koski are intimately connected with the words and artwork contained in their invitations . . . For each invitation, Duka and Koski spend many hours designing and painting custom paintings, writing words and phrases, and drawing images and calligraphy. Moreover, they insist on retaining artistic control over the ideas and messages contained in the invitations to ensure they are consistent with their religious beliefs.

 

"Pure speech."

Beautiful words!

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The court compared the plaintiffs to tattoo artists, individuals who are unquestionably in the business of creating art. It’s worth repeating time and time again that refusing to advance a particular message is not the same thing as the refusal to provide a service. Custom art is not ham and eggs at Cracker Barrel. Progressive legal dissenters (including the dissent in this case) recognize and don’t wish to overrule the compelled speech doctrine; they instead label the custom artwork at issue (whether it’s a custom cake, custom wedding video, or custom floral arrangement) as mere commercial activity, and the plaintiffs’ refusal to create the custom artwork is discriminatory conduct. The court disagreed:

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Ultimately, the City’s analysis is based on the flawed assumption that Plaintiffs’ custom wedding invitations are fungible products, like a hamburger or a pair of shoes. They are not. Plaintiffs do not sell “identical” invitations to anyone; every custom invitation is different and unique. For each invitation, Duka and Koski create different celebratory messages, paintings and drawings; they also personally write, in calligraphy or custom hand-lettering, the names of the specific bride and groom who are getting married. In short, Plaintiffs do not create the same wedding invitation for any couple, regardless of whether the wedding involves a man and a woman or a same-sex couple.

 

I think this decision is going to become helpful in future cases.  Not only is it valuable as precedent, but for its reasoning.  Distinguishing between bespoke, custom-made items (like custom invitations) and non-bespoke items (hamburgers) will need to be refined and enhanced.

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A well-crafted court opinion is an educational document. It can and often should not only persuade the precise legal reasoning at issue but also the justifications for the legal rules it applies. The court’s words are compelling:

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Duka and Koski’s beliefs about same-sex marriage may seem old-fashioned, or even offensive to some. But the guarantees of free speech and freedom of religion are not only for those who are deemed sufficiently enlightened, advanced, or progressive. They are for everyone. After all, while our own ideas may be popular today, they may not be tomorrow.

“Free speech for me, but not for thee” cannot be an American governing philosophy.

I said something fairly similar to this a few weeks ago: "'Freedom of conscience/speech for me and mine, but not for thee and thine.'  That seems to be what the bullies and their execrable enablers (like the so-called Colorado "Human Rights" Commission) are expecting."

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Moreover, continued victories for freedom of speech could well draw lines that allow both sides of the cultural divide the space to speak and exercise their liberties without creating a false, zero-sum conflict.  

I sure hope so.  I am glad to see such lawsuits being filed.  And won.  We need to stop this assault on civil liberties.  By constantly falsely accusing people of good conscience and good character of horrible things, by seeking to punish other people because they have opinions which do not jibe with theirs, by distorting both the form and intent of "public accommodations" laws to go after religious people, the militant gay rights crowd have burned bridges.  Opportunities for mutual understanding and love and cooperation and tolerance are being diminished or destroyed.  

In short, nobody likes a bully.  And sooner a later, the bullying ceases to have its intended effect.

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The court quoted the Supreme Court of the United State’s seminal opinion in West Virginia v. Barnette, and it’s worth quoting here as well:

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As governmental pressure toward unity becomes greater, so strife becomes more bitter as to whose unity it shall be. . . . . Ultimate futility of such attempts to compel coherence is the lesson of every such effort from the Roman drive to stamp out Christianity as a disturber of its pagan unity, the Inquisition, as a means to religious and dynastic unity, the Siberian exiles as a means to Russian unity, down to the fast failing efforts of our present totalitarian enemies. Those who begin coercive elimination of dissent soon find themselves exterminating dissenters. Compulsory unification of opinion achieves only the unanimity of the graveyard.

This is a great truth of history, and every American victory for free speech builds a larger and deeper defense of American pluralism. Today, the Arizona Supreme Court did its part to maintain America’s first freedoms.

It is amazing to me that some of the same people who have been demanding a non-enumerated constitutional "right" to same-sex marriage are now seeking to punish anyone who dares to exercise specifically enumerated constitutional rights (free speech, free exercise).

So today the bullies lost.  Again.  I am glad to see it.

Thanks,

-Smac

Edited September 17, 2019 by smac97

[LoudmouthMormon]

I'm glad to hear it.  Glad to hear that floating through our court system, are people with as much common sense as the average random young teenage aspiring artist girl on instagram:

 

Glad the courts are ruling in favor of her being able to say "I won't".

Edited September 16, 2019 by LoudmouthMormon

[Damien the Leper]

Many, myself included, saw this coming. Personally, I was not in favor of the bill and I'm glad the AZSC decided the way they did. One of the biggest problems I have about issues such as this is the fastness of progressives and the LGBT+ community to automatically declare a case as "discrimination". Why not just look for "Ally" businesses or businesses that simply don't care either way? 

Before we chase a rabbit hole, lets stop the Bible and racism within the American historical and religious context. To be clear, no matter what day in the age of this country we exist racial discrimination due to religion should always and forever be classified as sin and was enacted without the blessing of God Almighty.

[Ahab]

9 minutes ago, Valentinus said:

Many, myself included, saw this coming. Personally, I was not in favor of the bill and I'm glad the AZSC decided the way they did. One of the biggest problems I have about issues such as this is the fastness of progressives and the LGBT+ community to automatically declare a case as "discrimination". Why not just look for "Ally" businesses or businesses that simply don't care either way? 

Before we chase a rabbit hole, lets stop the Bible and racism within the American historical and religious context. To be clear, no matter what day in the age of this country we exist racial discrimination due to religion should always and forever be classified as sin and was enacted without the blessing of God Almighty.

Discrimination has (at least) 2 different definitions and I think one is okay while the other is, for lack of a better term, unjustified.

1. the unjust or prejudicial treatment of different categories of people or things, especially on the grounds of race, age, or sex.

   "victims of racial discrimination"

   synonyms:

   prejudice, bias, bigotry, intolerance, narrow-mindedness, unfairness, inequity, favoritism, one-sidedness, partisanship; More

2. recognition and understanding of the difference between one thing and another.

[Damien the Leper]

9 minutes ago, Ahab said:

Discrimination has (at least) 2 different definitions and I think one is okay while the other is, for lack of a better term, unjustified.

1. the unjust or prejudicial treatment of different categories of people or things, especially on the grounds of race, age, or sex.

   "victims of racial discrimination"

   synonyms:

   prejudice, bias, bigotry, intolerance, narrow-mindedness, unfairness, inequity, favoritism, one-sidedness, partisanship; More

2. recognition and understanding of the difference between one thing and another.

Still, #2 doesn't seem applicable either. In fact, it seems to be a stretch to consider #2 as the logical or rational explanation in this case.

[Ahab]

2 minutes ago, Valentinus said:

Still, #2 doesn't seem applicable either. In fact, it seems to be a stretch to consider #2 as the logical or rational explanation in this case.

Explanation for what?  What thought do you have in your mind that you are not expressing right now?

I'm just saying there are some differences in different races, even though all of us are people and all of us should love each other. 

I will also freely admit that I am more drawn to people who are more like me than to people who are different from me, so I do not agree with your blanket statement that racial discrimination due to religion should always and forever be classified as sin and was enacted without the blessing of God Almighty.

And I will also say that I believe we can recognize and understand that there are differences between one thing and another without treating someone or something in some unjustified way.

[Anijen]

replying just for the notifications.

Great win for free speech. Thanks Smac

[Damien the Leper]

2 hours ago, Ahab said:

Explanation for what?  What thought do you have in your mind that you are not expressing right now?

I'm just saying there are some differences in different races, even though all of us are people and all of us should love each other. 

I will also freely admit that I am more drawn to people who are more like me than to people who are different from me, so I do not agree with your blanket statement that racial discrimination due to religion should always and forever be classified as sin and was enacted without the blessing of God Almighty.

And I will also say that I believe we can recognize and understand that there are differences between one thing and another without treating someone or something in some unjustified way.

Racism and racial discrimination are the vessels by which an individual or a collective group determines that another person(s) are in some way inferior or at worse subhuman. Such persons who entertain, approve of in any small or great portion are what I like to call troglodytes. 

[Robert F. Smith]

4 hours ago, smac97 said:

.............................

It is amazing to me that some of the same people who have been demanding a non-enumerated constitutional "right" to same-sex marriage are now seeking to punish anyone who dares to exercise specifically enumerated constitutional rights (free speech, free exercise).

......................

Canada and Europe have gone the route of compelled speech.  Luckily we have a Constitutional protection against that sort of nonsense.

[Amulek]

This is another one that should have been an easy, open-and-shut case. Writing words is literally written speech. I don't see how it could have gone the other way. 

Well, I can see it going the other way, just not going that way and being right.  

 

[JarMan]

17 minutes ago, Robert F. Smith said:

Canada and Europe have gone the route of compelled speech.  Luckily we have a Constitutional protection against that sort of nonsense.

For now. 

[Scott Lloyd]

10 hours ago, smac97 said:

Last month I started a thread discussing a positive development in the 8th Circuit Court of Appeals pertaining to free speech and religious liberty: A Solid Win for Free Speech and Religious Liberty (8th Circuit Case)

It looks like the folks who appreciate these matters (free speech and religious liberty) are on something of a winning streak, since news is out today from the State of Arizona: 

This is what I have been saying for quite a while now.

Again, I've been raising this issue for a while now.  See, e.g., here: Cakes and Compelled Speech: The Saga Continues

And here: The Gay Wedding Cake Conundrum

"Pure speech."

Beautiful words!

I think this decision is going to become helpful in future cases.  Not only is it valuable as precedent, but for its reasoning.  Distinguishing between bespoke, custom-made items (like custom invitations) and non-bespoke items (hamburgers) will need to be refined and enhanced.

I said something fairly similar to this a few weeks ago: "'Freedom of conscience/speech for me and mine, but not for thee and thine.'  That seems to be what the bullies and their execrable enablers (like the so-called Colorado "Human Rights" Commission) are expecting."

I sure hope so.  I am glad to see such lawsuits being filed.  And won.  We need to stop this assault on civil liberties.  By constantly falsely accusing people of good conscience and good character of horrible things, by seeking to punish other people because they have opinions which do not jibe with theirs, by distorting both the form and intent of "public accommodations" laws to go after religious people, the militant gay rights crowd have burned bridges.  Opportunities for mutual understanding and love and cooperation and tolerance are being diminished or destroyed.  

In short, nobody likes a bully.  And sooner a later, the bullying ceases to have its intended effect.

It is amazing to me that some of the same people who have been demanding a non-enumerated constitutional "right" to same-sex marriage are now seeking to punish anyone who dares to exercise specifically enumerated constitutional rights (free speech, free exercise).

So today the bullies lost.  Again.  I am glad to see it.

Thanks,

-Smac

It appears that not all state governments are as despotic as the one in Colorado, where the bullies continue to go after Masterpiece Cake Shop notwithstanding its victory with the SCOTUS ruling in that case. 

[RevTestament]

17 hours ago, smac97 said:

It is amazing to me that some of the same people who have been demanding a non-enumerated constitutional "right" to same-sex marriage are now seeking to punish anyone who dares to exercise specifically enumerated constitutional rights (free speech, free exercise).

So today the bullies lost.  Again.  I am glad to see it.

Thanks,

-Smac

Hear, hear. Seconded.

We didn't like being compelled by the British crown. We started this land so that we would not be compelled in all things. So that we could give ourselves freedom. We should not let anyone take those away in the name of their freedom. Years ago, I told someone who is gay that I had no problem if gays wanted to get married. My problem would stem from them then wanting to impose that on everyone else - next they would demand the right to adopt, etc. In these types of cases they haven't realized that they are seeking to take away fundamental rights of others. They are seeking to use the long arm of the government to take away the very rights which they themselves have just gained in essentially court-created rights which are not even specifically enumerated in the constitution. One wonders if they will ever learn to respect the rights of others. One hopes so.

[smac97]

14 hours ago, Anijen said:

replying just for the notifications.

Great win for free speech. Thanks Smac

There are apparently a few more cases in the pipeline.  See here (published on August 28, prior to the Arizona decision being published):

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The Eighth Circuit’s decision sets the stage by creating a conflict with other decisions that have gone the wrong way. One of those cases, Arlene’s Flowers, will be headed back to the Supreme Court next month. Hands on Originals was just argued at the Kentucky supreme court. And Brush & Nib Studios will be decided any day by the Arizona supreme court. Each of these cases involves creative professionals who serve everyone but cannot promote messages or events through their art that violate their religious beliefs.

Here is a summary of the Arlene's Flowers case:

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The Arlene's Flowers lawsuit is a group of merged civil suits brought against Arlene's Flowers of Richland, Washington, US, by a same-sex couple that was refused service, represented by the American Civil Liberties Union (ACLU), and by Washington Attorney General Bob Ferguson. The lawsuits gained national attention due to their religious and civil rights implications.

The first two legal cases, Ingersoll v. Arlene's Flowers and State of Washington v. Arlene's Flowers were consolidated by Benton County Superior Court Judge Salvador Mendoza into a single case for purposes of discovery.

The first civil suit, Ingersoll v. Arlene's Flowers, was filed by a gay couple after Barronelle Stutzman, the owner of Arlene's Flowers, denied floral arrangements for their wedding. The couple had been customers of Stutzman's shop for nine years, but when they asked her to provide flowers for their wedding, the florist declined, citing her Christian beliefs. The same-sex couple denied Stutzman's services, Robert Ingersoll and Curt Freed, were represented by the ACLU in their lawsuit against the business on grounds of discrimination per the anti-discrimination laws of the state of Washington. Attorneys for the ACLU proposed a settlement in the suit with the following conditions: Stutzman making a public apology, donating $5,000 to a local LGBT youth center, and a promise to no longer refuse service to customers based on their sexual orientation. The legal group representing Stutzman, Alliance Defending Freedom, countered the settlement offer, stating she should not be required to violate her religious beliefs.

The second suit against Stutzman was a consumer protection suit filed by state Attorney General Bob Ferguson. The premise of the suit, State of Washington v. Arlene's Flowers, was filed by Ferguson in order to uphold the state's Consumer Protection Act. Upon settlement, the decision would bring a $2,000 fine under the Washington Consumer Protection Act, a $1 payment for costs, and agreement not to discriminate in the future. Stutzman, however, responded that she would not comply, with her counsel citing the state's constitution in regard to "freedom of conscience in all matters of religious sentiment". Following Stutzman's response, Benton County Superior Court Judge Alexander Ekstrom ruled on January 7, 2015 that she could be sued in her personal capacity.

A third lawsuit, Arlene's Flowers v. Ferguson, was filed as a countersuit by Stutzman to claim financial hardship she suffered as a result of the previous two lawsuits.

Judge Ekstrom ruled on February 18, 2015 that Stuzman had violated the state's anti-discrimination law in both cases. The next day, Stutzman's lawyers announced they would appeal the ruling. On March 27, 2015, Judge Ekstrom ordered Stutzman to pay a $1,000 fine and $1 for court costs and fees.

Via GoFundMe, Stutzman received over $174,000 in individual donations before the website removed her donation page citing a violation of their terms of service. GoFundMe stated their policy bars fundraising campaigns it deems discriminatory.
...
On February 16, 2017, the state Supreme Court unanimously ruled against Stutzman, holding that her floral arrangements do not constitute protected free speech, and that providing flowers to a same-sex wedding would not serve as an endorsement of same-sex marriage.
...
Following the state high court's decision, Stutzman filed a petition for a writ of certiorari in the Supreme Court of the United States, asking the Court to hear the case. During this case, a similar case, Masterpiece Cakeshop v. Colorado Civil Rights Commission, had made its way to the Supreme Court, and which was decided in early June 2018. The ruling was made on procedural grounds in that the bakery owner's religious views were treated with hostility by the Colorado Civil Rights Commission, and remanded that a new hearing be made. Stutzman, on this news, stated that she had also found her religious views treated with hostility by the state of Washington, and sought a similar rehearing. On June 25, 2018, the U.S. Supreme Court granted the petition for a writ of certiorari, vacated the judgment, and remanded the case to the Supreme Court of Washington for further consideration in light of the Masterpiece Cakeshop decision. On June 6, 2019, the Washington Supreme Court unanimously ruled against Stutzman again, finding no evidence of religious animus.

Per the increasingly-selective-about-which-"civil-liberties"-the-care-about ACLU, on September 11, 2019, Arlene's Flowers filed a petition to have this case heard by the U.S. Supreme Court.

I will be curious as to whether SCOTUS will agree to hear this case (I think it will) and if so what the result will be.

Here's a summary of the Hands on Originals case (published on August 23, 2019):

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The Kentucky Supreme Court heard arguments Friday over whether a Lexington company was allowed to refuse to print T-shirts for organizers of the city’s gay pride parade.

Blaine Adams, the owner of Hands On Originals, refused to make T-shirts for Lexington’s Gay and Lesbian Services Organization in 2012, saying that doing so would have violated his religious beliefs.

GLSO filed a complaint with the Lexington Human Rights Commission, which said the company had violated the city’s fairness ordinance.

But Hands On Originals appealed the decision and courts have so far ruled against the human rights commission’s decision, saying the company’s actions were protected under the First Amendment.

James Campbell, an attorney for Hands On Originals, argued the case before the state Supreme Court on Friday.

“The first amendment in this case cuts in Hands On Originals’ favor. Because the first amendment ensures that the government can’t use a law to force someone to print or convey a message that they find objectionable,” Campbell said.

The Gay and Lesbian Services Organization argues that the company violated Lexington’s fairness ordinance, which bans discrimination based on sexual orientation in employment, housing and public accommodations.

The shirt they asked Hands On Originals to print said “Lexington Pride Festival” on it with the number 5, signifying the 5th anniversary of the event.

Edward Dove, an attorney for Lexington’s Human Rights Commission, argued that Hands On Originals was engaging in targeted censorship.

“That’s why we have a public accommodations ordinance: to stop businesses from allowing certain populations to be discriminated against and not enjoy the goods and services that are being offered by that business,” Dove said.

Justices asked questions about whether the company’s interpretation of the law would allow businesses to discriminate against other groups based on messages about race, religion or sexual orientation.

Justice Michelle Keller compared the company’s refusal to print the T-shirts to housing and business discrimination against Catholics in the U.S. in the late 19th and early 20th centuries.

“I mean that would still be OK under this analysis, wouldn’t it? I mean that kind of overt discrimination between faiths? As long as it is tied to the production of printed material,” Keller said.

I think "public accommodations" laws should be limited to essential goods and services (food, clothing, housing, medical care, communications, etc.).  Otherwise, I think the free market will provide for everything else.  This would, I think, largely resolve Justice Keller's (reasonable) concern, while still (mostly) preserving individual constitutional rights (free exercise, against compelled speech, etc.).

I'll keep an eye out for developments in the Arlene's Flowers and Hands on Originals cases.

Thanks,

-Smac

[Kenngo1969]

13 hours ago, Robert F. Smith said:

Canada and Europe have gone the route of compelled speech.  Luckily we have a Constitutional protection against that sort of nonsense.

We do.  How long it will last is another matter.  Certainly, I support civility.  While I don't believe people should speak or should think ill of their fellow human beings (fellow children of God and brothers and sisters), I do marvel at the speed and the ease with which Crimethink and Crimespeak meet with the odium and opprobrium of the Uber Illuminati, who, it seems, while they condemn mere thoughts and words in the strongest possible terms on the one hand, seem eager to find psychological and sociological justification even for the most reprehensible and vile acts, on the other hand.

[Ahab]

13 hours ago, Valentinus said:

Racism and racial discrimination are the vessels by which an individual or a collective group determines that another person(s) are in some way inferior or at worse subhuman. Such persons who entertain, approve of in any small or great portion are what I like to call troglodytes. 

And I suppose you look down upon what you call troglodytes as some kind of inferior being.  I suppose that is at least a little bit of what I could call justified discrimination.

[Robert F. Smith]

25 minutes ago, Kenngo1969 said:

We do.  How long it will last is another matter.  Certainly, I support civility.  While I don't believe people should speak or should think ill of their fellow human beings (fellow children of God and brothers and sisters), I do marvel at the speed and the ease with which Crimethink and Crimespeak meet with the odium and opprobrium of the Uber Illuminati, who, it seems, while they condemn mere thoughts and words in the strongest possible terms on the one hand, seem eager to find psychological and sociological justification even for the most reprehensible and vile acts, on the other hand.

Yes,  and I have been amazed at how crude and rude prominent people have become.  Their foul potty mouths show contempt and disrespect for polite society as we used to  know it.

[Amulek]

19 hours ago, smac97 said:

It is amazing to me that some of the same people who have been demanding a non-enumerated constitutional "right" to same-sex marriage are now seeking to punish anyone who dares to exercise specifically enumerated constitutional rights (free speech, free exercise).

Many of them, yes, but not all. Some are principled defenders of free speech for thee and for me, such as SMU constitutional law professor Dale Carpenter, who writes:

Along with a million or so other Americans, I am in one of those marriages the calligraphers condemn. Free speech used effectively by gay-marriage advocates convinced large majorities of Americans to support the cause. Those supporters can criticize the calligraphers on theological, philosophical, and political grounds. And of course, they can readily (and, I assume, happily) take their business elsewhere. But those whose very calling is to put pen to paper should not be required–on pain of government-imposed fine, jail, or loss of their livelihoods–to speak in violation of their consciences.
(The Cato Institute, Eugene [Volokh], and I filed an amicus brief supporting a narrow win for the calligraphers on free-speech grounds. We did not express a view on the state religious-freedom claim, which the calligraphers also successfully invoked.)

Sounds about right to me. 

 

[Ahab]

1 hour ago, Robert F. Smith said:

Yes,  and I have been amazed at how crude and rude prominent people have become.  Their foul potty mouths show contempt and disrespect for polite society as we used to  know it.

Heh, potty mouth.  Heh heh. (insert clip art of a Minion right here)

Yeah Trump has a potty mouth, no question about it!  

 

[smac97]

1 minute ago, Amulek said:

Many of them, yes, but not all.

Yes, I acknowledge that.  This is why I said "It is amazing to me that some of the same people..."

1 minute ago, Amulek said:

Some are principled defenders of free speech for thee and for me, such as SMU constitutional law professor Dale Carpenter, who writes:

Along with a million or so other Americans, I am in one of those marriages the calligraphers condemn. Free speech used effectively by gay-marriage advocates convinced large majorities of Americans to support the cause. Those supporters can criticize the calligraphers on theological, philosophical, and political grounds. And of course, they can readily (and, I assume, happily) take their business elsewhere. But those whose very calling is to put pen to paper should not be required–on pain of government-imposed fine, jail, or loss of their livelihoods–to speak in violation of their consciences.

(The Cato Institute, Eugene [Volokh], and I filed an amicus brief supporting a narrow win for the calligraphers on free-speech grounds. We did not express a view on the state religious-freedom claim, which the calligraphers also successfully invoked.)

Sounds about right to me. 

They sidestepped the religious-freedom claim.  I would have liked to have seen them address it.  I have a lot of respect for Prof. Volokh.

Thanks,

-Smac

[Amulek]

5 minutes ago, smac97 said:

They sidestepped the religious-freedom claim.  I would have liked to have seen them address it.  I have a lot of respect for Prof. Volokh.

I think Gene and Dale aren't exactly on the same page with respect to religious freedom claims, so better to stick to ground where there is mutual agreement. 

 

[MiserereNobis]

I was wondering what the ACLU's stance was. I'm a little disappointed. I've been impressed by the ACLU's commitment to their principles regardless of the political position (such as defending neo-Nazi's rights to march, KKK gatherings, etc).

[The Nehor]

While I dislike the plaintiffs this was a good decision.

9 hours ago, Scott Lloyd said:

It appears that not all state governments are as despotic as the one in Colorado, where the bullies continue to go after Masterpiece Cake Shop notwithstanding its victory with the SCOTUS ruling in that case. 

I thought the last two lawsuits were dropped mutually. Did something else happen?

[smac97]

13 minutes ago, MiserereNobis said:

I was wondering what the ACLU's stance was. I'm a little disappointed. I've been impressed by the ACLU's commitment to their principles regardless of the political position (such as defending neo-Nazi's rights to march, KKK gatherings, etc).

The ACLU has at times defended religious freedom.  But if religious liberty bumps into any sacrosanct leftist orthodoxy (abortion, same-sex marriage, etc.), it seems like the ACLU will almost always choose the latter over the former.

And the ACLU is not merely a bystander.  At times, the ACLU moves to create legal disputes (such as can advance leftist orthodoxies).  See, e.g., this story:

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Here's how the ACLU manufactured the perfect case to attack religious liberty
by Nicole Russell | July 12, 2019 03:09 PM

A few months ago, Michigan reversed its law stating that faith-based agencies would not be forced to allow same-sex couples to adopt children if it was against the agency's religious beliefs. This was due to Buck v. Gordon, a case where the ACLU successfully argued a faith-based agency discriminated against a gay couple wanting to adopt. However, new evidence shows the ACLU of Michigan didn’t just happen to find a same-sex couple who wanted to adopt and couldn’t. The ACLU worked for two years to recruit just the right same-sex couple to challenge the law and force the faith-based agencies to violate their religious consciences.

This documented, purposeful targeting demonstrates just how bigoted the ACLU really has proven itself to be: The ACLU was willing to conjure up a scandal where there wasn’t one, resulting in an enormous waste of resources and time on behalf of the religious agencies, and an infringement of their religious liberties.

In a brand new brief filed just this month, the Becket Fund for Religious Liberty, which has been defending several faith-based couples and agencies, meticulously documents just how targeted the campaign against these groups have been.

The timeline goes like this. ...

Read the whole thing.  

Or consider these remarks by ACLU of Colorado Executive Director Nathan Woodliff-Stanley on CO House Bill 1048, Concerning Religious Freedom for Student Groups at State Institutions of Higher Learning:

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This bill would force Colorado public universities to recognize and support student groups that discriminate in violation of longstanding university policies.

I want to be clear that the ACLU strongly supports religious freedom, freedom of association, and freedom of speech, and students in colleges and universities are free to hold beliefs, express their opinions, and form groups as they wish. What they do not have the right to do is to get official recognition and public funding for these groups when they violate equal protection or nondiscrimination policies. Public colleges and universities should strive to ensure that educational opportunities are open to all, including student organizations and leadership opportunities.

Or this opinion piece from 2017:

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“The Dred Scott of First Amendment Law.” Those jarring words were offered before Congress in 1993 to explain why there was such an urgent need for passage of the Religious Freedom Restoration Act (RFRA). The speaker was then-ACLU President Nadine Strossen, and the focus of her ire was the Supreme Court’s recently decided Employment Division v. Smith, the case that made RFRA so necessary.

The ACLU’s support of RFRA placed it within the mainstream of liberal groups that led to the law’s near unanimous passage. Senator Ted Kennedy (D-Mass.) and then-Representative Chuck Schumer (D-N.Y.) sponsored RFRA. The Anti-Defamation League and People for the American Way supported it. Bill Clinton signed the law surrounded by a multi-faith coalition composed of many proud liberals. Religious freedom was a constitutional right firmly embraced by progressives.

I liked the ACLU that protected all our First Amendment rights — including religious freedom.  But like a Prodigal Son, it has wandered from the place it once called home. There are honorable exceptions, but the ACLU and many of its allies on the left are now increasingly hostile to actual religious freedom, which includes the ability to exercise one’s beliefs openly in the public square and not just within the narrow confines of a place of worship.

Examples abound:

1. The ACLU launched a lawsuit that would force most of the nation’s religious adoption agencies out of business, limiting the difficult choices facing birth mothers and forcing children into a broken government run-system. An ad campaign coinciding with the lawsuit makes no policy arguments, but instead relies on cartoonish portrayals of Christian adoption workers as violent bigots.  
2. The California legislature passed a bill (with strong ACLU support) that would require churches and faith-based charities to employ people who procure abortions. The bill was too extreme even for liberal Governor Jerry Brown, who wisely vetoed it.
3. Democratic Senators — with well-coordinated public relations help from the ACLU — declared as unfit for government service a Catholic judicial nominee and an evangelical deputy cabinet secretary based upon beliefs that tens of millions of American Catholics and evangelicals would recognize as their own. This religious test drew criticism from even liberal legal experts. Liberals have criticized such religious tests when promoted by right-of-center figures like Alabama’s Roy Moore, and rightly so.

Surprisingly, the ACLU has refused to embrace religious freedom even when doing so would help its own clients. In its high-profile litigation challenging President Trump’s travel ban, conspicuously absent from the ACLU’s legal briefs is any claim that the executive order violates either the First Amendment’s Free Exercise Clause or the Religious Freedom Restoration Act. These would be strong legal claims, and in a parallel case, leading constitutional scholar Neal Katyal makes both arguments. But the ACLU is so committed to a narrative promoting the “dangers” of religious freedom that it is unwilling to engage religious freedom protections even to shield its own clients.

Consider the implications of the ACLU’s position that religious freedom is perfectly fine so long as it does not come into conflict with any other important right or value. If that thinking were applied to other constitutional freedoms, it would render the Bill of Rights meaningless.  How much freedom of speech or of the press would there be if it were allowed only when it didn’t give offense?

It seems that the ACLU is, or has become, merely a fair-weather friend to religious liberty.

Thanks,

-Smac

Edited September 17, 2019 by smac97

[Damien the Leper]

2 hours ago, Ahab said:

And I suppose you look down upon what you call troglodytes as some kind of inferior being.  I suppose that is at least a little bit of what I could call justified discrimination.

Not at all. They are not inferior or subhuman. The line of reasoning to justify or rationalize racism or racial discrimination is, itself, logically inferior and is ignorantly asserted and employed.