Lawfare’s triple-threat against free speech

A smiling grandfather south of the Colorado line is about to mark the ninth anniversary of incessant lawfare against his tiny bakery. Jack Phillips’ only ambition had been to combine his talents in the culinary and visual arts into a business that serves the Master. His logo makes this plain. An artist’s pallet with both brush and whisk in the thumbhole sports the words “Masterpiece Cakeshop.”

But on July 19, 2012, a couple, who would unleash nine solid years of lawfare, walked into his store. Colorado did not allow same sex “marriage” at the time. But it had recently inserted the language of “sexual orientation” into its 1957 civil rights law. Armed with a marriage certificate from Massachusetts, they would soon see how powerful a weapon this bias-crime law had become.

The first salvo was launched in September of that year and was argued all the way up to the U.S. Supreme Court where Masterpiece Cakeshop prevailed on June 4, 2018. Immediately, Autumn (formerly Adam) Scardina launched the second salvo. This was dismissed “with prejudice” by the Colorado Commission on Civil Rights in 2019. Within weeks Scardina, an activist lawyer, brought a new lawsuit. Last week, this resulted in a $500 fine from a Colorado judge. Phillips’ defense will file an appeal, and the lawfare will continue.

The question is simple: once an artist puts his art on the market, does that give customers the right to compel him to use those talents to convey any and every message? Can a consumer compel a Muslim artist to paint a mural that blasphemes Allah? Can an atheist be forced to create lyrics that glorify God?

The legal precedents that prevent one person from forcing another to speak anything against his or her will are long established and unassailable. So, those prosecuting the lawfare must resort to legal contortions that twist the issue into something else. These contortions are three-fold.

First, they need to divide and conquer. So, they single out conservative evangelicals as the targets of choice. Ignoring Muslim bakers who share Masterpiece’s stance, and atheist bakers who have refused to bake Bible cakes, they have repeatedly targeted one of the very smallest of roughly twelve dozen bakeries in Colorado. They make a mockery of equal treatment under law.

This classic Marxist maneuver is meant to minimize opposition by isolating the target from the support of those who share a common interest. Lutheran pastor, Martin Niemoeller, famously recounted how this was done in Nazi Germany: “First they came for the socialists, and I did not speak out—because I was not a socialist. Then they came for the trade unionists, and I did not speak out— because I was not a trade unionist. Then they came for the Jews, and I did not speak out—because I was not a Jew. Then they came for me—and there was no one left to speak for me.”

Before allowing fellow-citizens to swing in the breeze, atheists, agnostics and non-evangelicals of all stripes should consider the cost of silence. Even if the baker were to win on the narrow grounds of “sincerely held religious belief,” the underlying right of every citizen to speak his or her mind is obliterated. 

What if you simply think that some politically correct idea is absurd? Should you be prohibited from speaking your mind and defending your position simply because you lack a “religious” motive? If the First Amendment’s right to “free speech” is only valid when it is an “exercise of religion,” constitutional protections are denied to the non-religious. That should trouble everyone.

Not only has the grievance machine swallowed up free speech into the category of religious exercise, its second move is to narrow the question further still. Invoking the constitutionally problematic Employment Division v. Smith (1990), they assert that governments have carte blanche to infringe on the free exercise of religion so long as the infringement has “general applicability.” Smith created such a furor that congress responded with the near-unanimous passage of the Religious Freedom Restoration Act. Today’s enemies of free speech despise RFRA and circumvent it whenever activist judges allow. 

When Masterpiece won its case before the Supreme Court three years ago, it left Colorado’s “Anti-Discrimination” Act (CADA) in force and only objected that the Colorado Civil Right Commissioners insulted Phillips' evangelicalism in their proceedings. If the commission had been more disciplined and kept their bigoted opinions to themselves, SCOTUS might have upheld their religious infringements.

Colorado Civil Rights Commission, May 30, 2014

In like fashion, Chief Justice John Roberts recently penned a majority opinion that upheld the religious freedoms of Catholic Social Services in Philadelphia, but not because the city forced religious institutions to act contrary to their core doctrines. Rather, Fulton v. City of Philadelphia hinged on a clause in the city’s policy that might allow for other religions to be exempted. Apparently, if the city had only trampled religious freedom, with no exemptions possible, it would be constitutional. 

The third way that free speech protections are skirted is to reframe speech as an “action.” Wyoming first saw this contortion in the case of Judge Neely from Pinedale. The Wyoming Supreme Court acknowledged that speech is constitutionally protected both in Wyoming and in America. But the 3-2 majority nevertheless punished her speech under the bizarre notion that, in her case, speech was action.

A similar twist was employed against Masterpiece Cakeshop. The bakery demonstrably serves all customers without discrimination. It stated plainly, and under oath, that the sole reason for denying one specific request was because the artist would not be exploited to express an idea alien to his understanding.

The judge in last week’s ruling even acknowledged the Defendants’ argument “that they did not decline Ms. Scardina’s request because of her transgender identity, but rather because of the cake’s message.” Nevertheless, through tortured logic, he decreed that he knew better than the Defendants what they themselves were thinking.

This is why so-called “bias-crime” and “hate-crime” legislation is so dangerous. It appoints non-elected judges, bureaucrats, and activist lawyers to read minds. With sole discretionary power to decide what a person is thinking, they can manufacture thought crimes out of whole cloth. Such legal bazookas are worthy of Lavrentiy Beria, Stalin’s chief of the NKVD, who boasted: “Show me the man, and I will show you the crime.”

Legislators must protect Wyoming from the far-reaching power of such bias-crime legislation. What has unfolded a mere two hours south of the Capitol Dome should be a cautionary tale. Colorado’s caustic legislation has enabled nine years of lawfare against an inconsequential baker. Like acid, it dissolves every constitutional protection it encounters—not only the free exercise enjoyed by religious people, but free speech for all.

That makes last week’s Joint Judiciary Committee actions especially troubling. While Colorado’s legislators may have had the excuse of ignorance when they passed CADA in 2008, Wyoming’s legislators have had a front-row seat to observe its speech-destroying effects. Given such forewarning, they can no longer pretend ignorance of the unjust outcomes enabled by bias-crime legislation. It has been proven by a decade of jurisprudence that such laws have only one intent: to mute constitutionally protected free speech.

Also published in the Wyoming Tribune Eagle, June 25, 2021.

Re-grounding the Second Amendment in natural law

It has been thirteen years since the Supreme Court last looked at the Second Amendment. In that case, District of Columbia v. Heller, it finally admitted that “the right to keep and bear arms” is an “individual” right to home defense, and not merely a right for states to maintain “a well-regulated militia.” In April of this year, the Court agreed to hear New York Rifle and Pistol Organization v. Corlett. This will address whether that right of individuals to “bear arms” gives constitutional protection for those who want to carry a firearm across town, or if one is only allowed to carry it from the bedroom to the kitchen.

Meanwhile, there has been a spate of activity in California’s Ninth Circuit. Three separate cases from the lower courts have nullified different aspects of California’s virtual ban on the popular AR-15 (Armalite Rifle). Duncan v. Becerra overturned California’s ban on the standard 30-round magazine. Rupp v. Becerra and, more recently, Miller v. Bonta challenge California’s AR-15 ban as violating SCOTUS’ “common use” standard.

If all this seems barely relevant except to preppers, this column is for you. My purpose today is not to get into the weeds of all these cases and reconcile the Court’s strange and contradictory pronouncements. Rather, I will simply outline a few basic concepts to help the non-gun-enthusiast appreciate what is at stake.

We begin by observing that the most ardent defenders of the Constitution were opposed to the original Bill of Rights. They did not oppose the rights delineated in the first ten amendments. Rather, they opposed the very idea of delineating rights. The problem, as they saw it, is the difference between “natural law” and “positive law.”

The U.S. Constitution is an outgrowth of the “natural law” that produced the Declaration of Independence. The law that “all men are created equal” existed before governments and legislators said so. “Positive law,” on the other hand, creates law as a “social contract.” According to it, humans have no rights whatsoever until those in power say that they do. “Positive law” theory attacks the very foundations of our constitutional republic. 

By making a list of specific rights, the Bill of Rights presented two dangers. First, just rights unintentionally omitted from the list might not be protected. Second, the Bill of Rights itself might inadvertently teach that rights come from the federal government, and are not transcendent and above all human institutions.

Especially when it comes to the Second Amendment, those original critics of the Bill of Rights have been vindicated. Gun rights—even more than the rights of free speech, free assembly, free press, and the free exercise of religion—are too often treated as special privileges that can be alternately doled out or rescinded at the whim of lawmakers. To the contrary, the Constitution’s framers considered “the right to keep and bear arms” as a natural right inherent in the very fact of your humanity. It does not arise from government, but from God.

Obviously, this view of the Second Amendment does not depend on current technology. Whether a person has the right to carry a rock, a knife or a pistol is not for the government to decide. What is inherent in the very reality of humanity created in the image of God is the responsibility to love one’s neighbor with heart, soul, strength and mind.

When loving one’s neighbor requires defending him or her from bodily harm, human beings have the corresponding right not only to make use of physical strength, but also to use the mind. We think up tools that can assist us to defend our families and our neighbors from harm. This creativity comes from God and is a gift that the animals do not possess. No government has the right to infringe on it.

This right exists independently of the Second Amendment because your responsibility to protect your neighbor is not an assignment from the government, but an assignment from God. As technology advances and your neighbor is threatened by more sophisticated tools, your right to match this sophistication by possessing tools for defense is inherent.

Contrary to SCOTUS’ “common use” doctrine, there is nothing in the Constitution, or in natural law, that requires a tool to be commonly available before you have a right to keep and carry it. Whether a tool be so obsolete that it is no longer in common use, or so cutting-edge that few yet own it, governments have no right to disadvantage some while arming others. Rather, they should limit themselves to prohibiting only those tools that have no use in defending individual persons—or which are impossible to use without harming innocent bystanders. 

As we stock up on fireworks to celebrate the firearms that won our independence, now would be a good time to think about the modern tools that we need to have on hand to protect the life and liberty of our neighbors in the 21st century.

Also published in the Wyoming Tribune Eagle on June 18, 2021, and in the Cowboy State Daily on June 28, 2021.

Personal engagement can restore confidence in the truth

A Freedom of Information Act request recently published cascades of emails that expose months-long coverups about mask-effectiveness, gain-of-function research, and possible laboratory origins of COVID-19. The scandal has also enveloped some of the biggest names in media as being either complicit or incompetent. 

This is only the most recent scandal to diminish the American people’s trust in media. Already in January, a survey found that 58 percent of Americans agree that “most news organizations are more concerned with supporting an ideology or political position than with informing the public.” Most, (56 percent) believe the press is “purposely trying to mislead people by saying things they know are false or gross exaggerations.”

We are in a truth crisis that is polarizing the American public. But the situation is not hopeless. We are not helplessly at the mercy of a few media moguls. There are a few simple principles that can equip good citizens to reclaim the noble task of seeking the truth. Below are six of them.

First, slow down! Take a deep breath. Misinformation thrives on breathless haste. Time is your ally. Use it. Social media and cable news are designed to manipulate your emotions and make you feel like you are "missing out" if you are not the first to “know.” Resist their manipulation by suspending judgment. 

The truth will out. Every lie has a shelf life. Eventually, it will expire and be exposed. So, take every precaution to avoid ruining your own reputation by repeating it to your friends.

Second: Never trust an anonymous source--ever. In a world where our eyes and ears cannot be everywhere, we rely heavily on the reportage of others. This requires a high amount of trust in persons to be fair, objective, comprehensive and accurate. That is a tall order. 

When you must rely on others, the good name of the source is everything. If that source has no name, you have nothing. Anonymity makes it cost free to reveal difficult truths. It also makes it cost free to lie. Truth is a serious and costly enterprise. Any source unwilling to pay that cost is not yet a serious source.

Third: Reputation matters. It takes years to build a reputation as a truth teller. (See point one, above.) One single lie can undo a reputation built on a hundred truths. Serious sources will take that into account every time they open their mouths. And, if they ever make a mistake, they will be the first to tell you—not the last. They will openly repent and not try to cover up their lie.

What is true of individual people is also true of institutions. Truthfulness and honesty must be perfect. A 99-percent accuracy rate does not make us suspect a lie in only one percent of statements. It raises doubt in everything that news outlet prints—and it should! Past lies and inaccuracies should not be rewarded by continued trust.

Any news source that publishes false information--no matter what its motivation and no matter how long it has been trusted--should be forever distrusted. The only way to regain a lost reputation is by early, self-humiliating, and public retraction of the falsehood. Small print on page seven, months after the false story, should not rehabilitate your trust in a newspaper.

Fourth: Trust your own eyes. God gave you eyes, ears and reason specifically for discovery of the truth. Use them. The only time you need sources at all is when you are physically unable to be there. If you have firsthand knowledge, never let anyone gaslight you into thinking you didn’t see what you saw or hear what you heard.

Fifth: Do your own research. “Authorities” can be helpful--once you have established their bona fides (good faith). But putting unquestioned trust in anyone other than God is simply wrong. We may give provisional trust to authorities because they both have training and have promised to operate ethically. But if any authority violates ethical standards—even once—he has discredited himself and should be ignored. This is not a harsh and uncharitable judgment. This is simply the truth.

Sixth: Care more about the truth than about defending your position. Winning the argument is not the goal. Knowing the truth is. When defending your own opinion, rid yourself of emotional attachments to it. And don’t treat people with opposing opinions as enemies. They are, rather, friends who can work together with us to follow the evidence and discover the truth.

These few, simple steps can help us find our way out of a labyrinth of lies. No longer isolated in a thousand darkened tunnels, we can gather together in the light of truth and get back to the task of living.

Also published in the Wyoming Tribune Eagle on June 11, 2021.