Conscience and the Supreme Court: Why it is Time for the Court to End Compelled Speech
Last week, we looked at the story of Barronelle Stutzman and how the Washington Supreme Court has allowed state attorney general Bob Ferguson and the ACLU to target her for her religious beliefs. Barronelle’s case has gone to the U.S. Supreme Court before, and the Court vacated and remanded Washington’s ruling in light of Masterpiece Cakeshop v. Colorado Civil Rights Commission.
But the Washington Supreme Court’s second ruling against Barronelle actually sets the stage for a broader victory: It’s time for the U.S. Supreme Court to decisively protect Americans from government compelled speech that violates one’s conscience or faith.
Let’s take a look.
Alliance Defending Freedom Senior Vice President of U.S. Legal Division Kristen Waggoner has gotten to know Barronelle Stutzman extremely well over the past decade. Waggoner argued Barronelle’s case before the Washington Supreme Court in 2017, and represented her through the lower courts as well. When Waggoner argued Masterpiece at the U.S. Supreme Court, Barronelle was in the courtroom. Waggoner writes at The Washington Examiner:
To know Barronelle Stutzman is to love her. She’s a warm-hearted grandmother, a hard-working small business owner, and an award-winning floral artist who for decades has devoted herself to creating unique floral creations for her customers. Barronelle takes deep pleasure in serving every person who walks through her door, whether it be a lovelorn teen, a husband celebrating an anniversary, or the gay man she’s served as a friend for almost a decade.
Barronelle is a devout Christian who believes that marriage is the union between a man and a woman — a belief that the U.S. Supreme Court has described as “decent and honorable.” Barronelle graciously shared that with [her long-time customer and friend] Rob and gave him the names of a few other florists. They chatted about the pending wedding and parted with a hug. She did not reject Rob that day. For Barronelle, the issue was not the man, but the event — an event held sacred by her faith.
Soon enough, Barronelle found herself being sued by her home state of Washington and the ACLU. Everything she owned was put at risk by the state attorney general.
This encounter between friends should have ended as a mutual understanding between friends, but Washington’s attorney general decided to make an example out of Barronelle. This is the type of religious animosity that the U.S. Supreme Court rebuked in Masterpiece. ADF Vice President of Appellate Advocacy John Bursch explains:
When a social media post from Rob’s partner caught the attention of Washington Attorney General Bob Ferguson, he immediately pounced. Acting without any complaint from Rob, Ferguson embarked on a personal vendetta against Barronelle, suing her business and suing Barronelle in her personal capacity.
Soon, the ACLU filed a lawsuit against Barronelle, and the combined attacks have put Barronelle’s life savings in jeopardy.
As in Jack’s case, Barronelle has been denied equal treatment. While Ferguson has targeted Barronelle for personal destruction—marshaling unprecedented taxpayer resources in doing so—he’s allowed overt hostility against a group of Christians on the part of a coffee shop owner (an incident caught on video) to go unanswered.
According to the Washington Supreme Court, the hostility evidenced by the Attorney General—the state’s highest law enforcement officer—doesn’t count in the constitutional equation. Instead, as Bursch explains, the Court “limited ‘state actors’ to include only ‘state judges or adjudicators,’ giving a free pass to other government officials like the state attorney general.”
And so, Barronelle will appeal once again to the U.S. Supreme Court. In addition to Masterpiece, Waggoner says two very recent Supreme Court decisions back up Barronelle’s argument.
Masterpiece has since been joined by two more strong 2018 court decisions that upheld freedom of speech and freedom of conscience. In NIFLA v. Becerra, the Supreme Court held that all Americans — including people of faith — have a right to be free from government-compelled speech, which includes artistic expression. And in Janus v. AFSCME, the court ruled that compelled speech is unconstitutional and particularly reprehensible when it forces someone to violate his or her conscience.
These three cases form a powerful litany of freedom: No government hostility toward religious beliefs. Free speech must be protected. And the government cannot compel citizens to speak. No Supreme Court decision has ever compelled anyone to attend and assist at any religious ceremony.
David French at National Review expands on the evil of government-compelled speech:
SCOTUS must hear this case, and when it does, it should avoid limiting itself to the narrowest possible question — does evidence of anti-religious animus by law enforcement, as opposed to adjudicators, invalidate an enforcement action? Instead, it should reach the core question and definitively reaffirm generations of precedent prohibiting the government from compelling Americans to engage in speech supporting a cause they oppose.
In 1943, the Supreme Court wrote the words below — words that represent a bulwark against the power of the state and a fortress around individual conscience. They applied when the government tried to force Jehovah’s Witnesses to pledge allegiance to the flag, and they apply when the government tries to force its religious citizens to use their art to celebrate events they find immoral:
“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. If there are any circumstances which permit an exception, they do not now occur to us.”
These resounding words—that no government official may force an American to speak or act to affirm a state orthodoxy—summarize the compelled speech issue. And that issue—squarely presented by Barronelle’s case—will be front and center should the case return to the U.S. Supreme Court. And this gives Ryan Everson of The Washington Examiner hopes that the greater victory is ahead. He writes:
I understand why conservatives may be upset about [the state court] ruling, but they really shouldn’t be. In fact, this is the perfect opportunity to set a broad precedent for the First Amendment freedom of religion.
Remember, Anthony Kennedy wrote both the Obergefell and Masterpiece decisions. Justice Brett Kavanaugh’s appointment, if anything, seems likely to permit a broader reading of the Masterpiece Cakeshop victory. Meanwhile, the three conservative-leaning justices who were on the court at the time of Obergefell were part of the dissent, and it would be quite odd for them to shift from there to granting Kennedy's gay marriage ruling the most expansive reading possible. It would also be odd to expect Kavanaugh or Neil Gorsuch (who wrote the lower court opinion in the Hobby Lobby religious freedom case) to go further than Kennedy with respect to Obergefell.
And John Bursch at ADF agrees:
The Masterpiece ruling and the First Amendment are clear: No state actor—whether a judge, police officer, attorney general, president, or governor—may treat one U.S. citizen worse than another because of his or her faith.
The Washington Supreme Court is forcing the U.S. Supreme Court to drive that message home yet again. And Barronelle’s case will give the high court a great opportunity to do just that.
Should the Supreme Court take up Barronelle’s case, the result will affect all Americans. Waggoner explains:
Countless Americans from faiths as diverse as Islam and Christianity believe that marriage is the union of a man and a woman. No one should be hounded by the state, banished from the marketplace, and ruined because of his or her good-faith views of marriage.
When Barronelle returns to court, she will be fighting for the freedom of all Americans. And a win for Barronelle will be, truly, a victory for us all.