Freedom of speech includes the right not to speak. In other words, the “right to remain silent” belongs to all of us, not just people under arrest.
The Supreme Court established the point in 1943 when it decided that public school students cannot be required to salute the flag or recite the Pledge of Allegiance. And in 1977 the Court held that New Hampshire could not require citizens to display the motto “Live Free or Die” on their license plates.
In recent times, creative lawyers have come up with a way of “weaponizing” the First Amendment. What this means is that even where a particular law poses no threat to the right to practice one’s religion, the First Amendment free speech clause is being used to attack the law in order to vindicate religious beliefs.
The best-known case involved Jack, the wedding cake baker whose religion teaches that same-sex marriage is wrong. He declined to create a wedding cake for Charlie’s and David’s wedding celebration on the basis that wedding party guests would believe that the cake’s designer was expressing approval of gay marriage. Jack’s refusal violated the Colorado public accommodations law, which prohibits those who offer services or goods to the public from discriminating on account of various characteristics, including race, religion, gender, or sexual orientation.
Jack won that case in 2017, but the Court did not decide the “right not to speak” constitutional question. Instead, it took umbrage with insensitive comments about religion made by a member of the Colorado Civil Rights Commission while it was hearing the case. The court majority ruled that the commission failed to provide Jack with a religiously neutral forum.
On February 22, 2022, the Supreme Court agreed to hear another Colorado case that tests whether the public accommodations law applies to a web designer named Lorie Smith, who refuses to provide her services to same-sex couples planning to get married.
Unlike Jack the Baker, Ms. Smith didn’t turn anyone down. But she believes that making a website for a same-sex marriage would compromise her Christian beliefs. So, she filed a pre-emptive lawsuit.
Designing a cake or a website for a same-sex marriage may be a form of expression, but I have a hard time with the notion that doing so implies approval of such unions. It’s much like questioning Judge Ketanji Brown Jackson’s qualifications for the Supreme Court, as some senators are now doing, on the grounds that during her years as a public defender she represented people charged with crimes. By providing legal representation, a public defender is not sending a “message’ that she approves of the conduct of which her client stands accused. She is simply providing a service which, as it happens, her client has a constitutional right to receive.
According to the 2-1 Tenth Circuit Court of Appeals ruling against Ms. Smith, Colorado has “a compelling interest in protecting both the dignity interests of members of marginalized groups and their material interests in accessing the commercial marketplace.” The dissenting judge argues that Government cannot force someone to produce a message that violates her conscience.
Calling what Jack and Lorie refuse to do as speech issue obscures what is really at stake. This isn’t about speech, it’s about religion, and the question is how to square religious beliefs, on the one hand, with the right on the other hand not to be discriminated against in the public marketplace on account of certain traits or lifestyles.
If the Supreme Court overturns the Tenth Circuit and rules in favor of Ms. Smith, as I expect it will, the impact is not necessarily just a narrow loophole. More likely, it will compromise the laudable public policy of preventing discrimination in the sale of goods and the rendering of services. I see no way that such an “exception” can be limited to same-sex weddings. If cake bakers and website designers are exempt, why not a flag-maker who refuses to make the multi-colored gay pride flag on the grounds that his religion considers it a sin to engage in homosexual behavior? (A Pew Research poll found that a 55% majority so believes.) From there, it’s a short step to interracial marriage which some people consider against their religion. And I doubt that it stops there.
What disturbs me is that these cases present a kind of judicial hypocrisy. This isn’t really about the right of the baker, the designer, the flag maker, or anyone else to remain silent. The real question is whether the legal system should allow a person’s religious beliefs to prevail over the public accommodation right that belongs to all of us, regardless of who we are, how we look, or what we believe. By plying their trade, those who sell products or provide services are not sending a message of approval, disapproval, or anything else about their customers. So, it’s not about the “right not to speak.”
And neither is it about the constitutional right to free exercise of religion. Public accommodations laws are essential to a pluralistic society. Requiring those who offer goods and services to do so even-handedly takes nothing away from their right to worship as they please.