We often hear the Constitution called a “living document.” By this theory, it is like a tree constantly growing new “rights,” while old rights die and fall away. Principles once strong enough to support a law, might be riddled with termites until it topples like a dead branch.
What is more, these “rights” based on “penumbras” and “emanations” always tend to trump the rights that are actually named in the Constitution. The newest “right” found in the Constitution was discovered just three years ago when Justice Anthony Kennedy authored Obergefell v. Hodges which invented a constitutional right to marry.
Not wishing that this new “right” should trump the First Amendment, Kennedy promised, “…that religions, and those who adhere to religious doctrines, may continue to advocate with the utmost, sincere conviction that, by divine precepts, same-sex marriage should not be condoned.”
In the years since, many have watched with alarm as this new right sought to devour the right of free speech, free exercise of religion, property rights, freedom of assembly and more. I, myself, have often wondered what Justice Kennedy thought of these developments. Is that what he intended all along? Or was his opinion being exploited contrary to his intentions?
In his final session at the Supreme Court, Kennedy got the chance to answer those questions. The Court agreed to hear no less than three separate cases involving First Amendment protections. Masterpiece Cakeshop v. Colorado Civil Rights Commission, NIFLA v. Becerra, and Janus v. AFSCME.
The first decision, Masterpiece, involved a shopkeeper’s right to free speech and free exercise of his faith in declining to join in celebrating a wedding. Kennedy himself wrote the opinion.
Kennedy wrote for a strong 7-2 majority to vacate Colorado’s punitive measures against the baker because of their unacceptable hostility to his religion. Three weeks later they applied the same standard to Washington florist, Barronelle Stutzman, vacating her conviction for exactly the same hostility.
The second decision was NIFLA v. Becerra. Like Masterpiece, it involved both the free exercise of religion and free speech. But this time, the Court skipped the religious issue already covered by Masterpiece and honed-in on the freedom of speech that Masterpiece had deferred.
NIFLA centers on a law that requires medically licensed pro-life pregnancy centers to advertise free or low-cost abortions offered through the state. The same law forces non-medical pregnancy centers to place large, wordy notices on all advertisements.
Similar laws in Texas, New York, Maryland and Illinois have been struck down since they do not stand up to the “strict scrutiny” required for government to impinge on free speech. But the Ninth Circuit Court of Appeals applied a different standard to the California law.
Admitting that the law coerced speech without meeting the strict scrutiny standard, the Ninth Circuit attempted to carve out a new category of “professional speech” that can be impinged for lesser reasons. The Supreme Court rejected their argument and determined that NIFLA was “likely to succeed on the merits of their claim that the FACT Act violates the First Amendment” (NIFLA v. Becerra, 20).
The following day SCOTUS handed down the third ruling on Janus v. AFSCME that took the unusual step of overturning a 41-year-old precedent set by Abood v. Detroit Board of Ed. In 1977, the Supreme Court ruled that it was lawful to force government employees to pay a union even if they objected to joining and disagreed with its advocacy.
Justice Alito’s majority opinion made clear that the First Amendment right of free association includes also the right not to associate. In fact, this trifecta of First Amendment rulings reassert our right not to be forced (1) to worship at the government’s altar (Masterpiece), (2) to speak the government’s message (NIFLA), or (3) to join the government’s associations (Janus).
Kennedy joined the majority in all three cases, and penned opinions in two of them. Among the final words he wrote before retiring were in his concurring opinion in NIFLA. It is less than two pages long, but worth reading.
He wrote in part, “The California Legislature included in its official history the congratulatory statement that the Act was part of California’s legacy of ‘forward thinking,’ but it is not forward thinking to force individuals to be an instrument for fostering public adherence to an ideological point of view they find unacceptable. It is forward thinking to begin by reading the First Amendment as ratified in 1791.”
By these words Kennedy made clear his own stance on the “living Constitution.” He made clear that the Constitution lives not like a wooden tree, but like a living, breathing person who speaks living and powerful words that are just as relevant today as they were centuries ago.
This is Kennedy’s greatest legacy.
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