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.
No comments:
Post a Comment