A Test for Religious Liberty | Eastern North Carolina Now

    Publisher's note: BCN welcomes Contributor Ryan Case, who, along with BCN Contributor Austin Goss, publishes a growing journal, The Liberty Fix, already steeped in information of a growing wisdom.

    In the Supreme Court's upcoming fall session, we will find out whether or not the First Amendment still exists in any meaningful way. Specifically, the Court's regard for free speech and the free exercise of religion will be put to the test in Masterpiece Cakeshop, Ltd. v. Colorado Civil Rights Commission. This case involves Jack Phillips, who founded the Masterpiece Cakeshop in 1993, a small bakery in Lakewood, Colorado. While Phillips himself is a gifted cake artist who specializes in custom products, the shop also sells pre-made cakes and other baked goods. Philips had been allowed to serve his community with his talents while living according to his faith for years, until the Colorado Civil Rights Commission endeavored to take that away from him in the name of the left's backwards brand of "progress."

    In the summer of 2012, a gay couple requested that Phillips design them a personalized cake for their upcoming wedding. While Phillips politely explained that his faith would not allow for him to personally design a cake for a same-sex wedding, it was made clear that he would be happy to sell them any of the bakery's other products or a pre made cake. The couple proceeded to file a complaint with the Colorado Civil Rights Commission. This swiftly led to a suit being brought against Phillips' bakery under a state public accommodations statute that prohibited discrimination based on sexual orientation. While Phillips and his attorneys argued that he was happy to serve the couple, and that he only sought to avoid personal expression in violation of his religious beliefs, the Colorado Appellate Court has torched both the Constitution and precedent in declaring that Phillips is not protected under the First Amendment.

    With regards to the free speech clause, there are two huge flaws in the state's argument. First, the Court's holding that an art such as cake design is not protected speech is a complete abandonment of precedent. From Stromberg v. California (1931), where the Supreme Court ruled that the state could not prevent individuals from flying certain flags, to the more well known Texas v. Johnson (1989), where the Court determined that flag-burning was protected under the First Amendment, the Courts have consistently stood in favor of a right to symbolic speech as long as it consists of an expressive act. In this case, Phillip's personal design is clearly expressive, and therefore should be treated as First Amendment speech.

    The second flaw deals with the Court's precedent on compelled speech. Starting with West Virginia Board of Education v. Barnette (1943), it has been a fixed principle in American law that the right to free speech implies a right not to speak. In Barnette, Justice Jackson eloquently stated 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 the State were to succeed in coercing Phillips into designing a same-sex wedding cake, it would be doing exactly what solid precedent says it has no authority to do.

    This case has obvious ramifications for our understanding of the First Amendment's free exercise clause as well. If Colorado has its way, Phillips will be forced to violate his faith in order to run his private business. This notion runs contrary to Americanism in every way possible, and is just another example of the left's war on religious liberty. To make matters worse, the state has prescribed Orwellian punishments for Phillips and his staff. These include a mandatory "re-education program" and "quarterly 'compliance reports' for two years." If the state's disregard for the First Amendment is not frightening enough, the idea of government "re-education" of religious individuals exercising their constitutional rights should do the trick.

    On the bright side, both the current Supreme Court's conservative and liberal wings have been quite good on the First Amendment. The concern is whether or not the Court's moderates, which include Chief Justice Roberts and Justice Kennedy, will see the issue through the lens of free expression rather than gay rights. It should be hoped that cases like Barnette and Johnson are seen as the relevant precedent here instead of Obergfell, which redefined marriage in a shocking display of judicial activism, but has little relevance here. Moreover, It is very possible to believe it's wrong to discriminate against gay citizens or be personally in favor of same-sex marriage and simultaneously recognize one's constitutional right to run their business according to their personal religious principles. It should be hoped the Court does not confuse the two, and sides with the Constitution on this one.