Joseph: The Constitution Protects the Freedom Not to Speak, Too


Back in the old days, in a class discussion in sixth grade, I remember receiving a compliment from my teacher: “That’s very discriminating — excellent discernment, Rita!”

As usual back then, I squirmed, wanting to hide under my desk, torn between pride and embarrassment. The teacher was smiling — so I kind of knew it was a compliment. But just in case, when I got home, I looked up the dictionary meaning of “discrimination” and “discernment.”

However, the meaning of “discrimination” had radically changed by the time I completed a philosophy of language post-graduate thesis. To “discriminate” had become an accusation, not a compliment.

Well, I see this week that the U.S. Supreme Court is having trouble deciding whether Lorie Smith, a conservative Christian Denver-based website designer, is “guilty” of discrimination.

Is she violating Colorado’s anti-discrimination law by refusing to design a wedding website to advertise and celebrate a same-sex union? Is she to be found guilty of unlawful discrimination against two people of the same sex?

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Or is her decision-making lawfully based on her First Amendment rights? Does she have a right not to be forced into facilitating a novel kind of marriage that violates her religious principles and obligations?

Suddenly, with Thursday’s passage of the Respect for Marriage Act by the House, Supreme Court answers to these questions about Smith’s rights have become far more critical.

Is compelled speech unconstitutional?

The First Amendment of the Bill of Rights sets out her rights very clearly: “Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof; or abridging the freedom of speech.”

Should Smith be forced to design a website for a same-sex wedding?

Compelled speech abridges Smith’s freedom of speech. Colorado law, seeking to compel her speech, is not consistent with her constitutional right not to be forced to express a message that violates her core moral convictions.

Her Christian principles inspire in her a conscientious exercise in discernment. The Bill of Rights says she is free to make and to affirm, in accord with her own conscience, a lawful distinction on moral grounds.

That’s definitely not unlawful discrimination.

Yet last Monday, the Supreme Court in oral arguments examined 303 Creative LLC v. Elenis regarding a Colorado law that forbids “discriminatory practice” by business owners against persons because of their “disability, race, creed, color, sex, sexual orientation, marital status, national origin, or ancestry.”

Kristen Waggoner, Smith’s lawyer, argued the case as a free speech issue and not as a discrimination issue. She pointed to the Supreme Court’s promise in Obergefell to protect those who believe marriage is between a man and a woman from having to express a view that violates their conscience.

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Justice Amy Coney Barret summed it up succinctly: “So it’s about the message and not about the sexuality of the couple that asked her to express it that matters?”

Justice Neil Gorsuch, too, drew a nice distinction between the stated allegation that Smith is “refusing to provide any wedding website for a same-sex couple” and the factual reality that she is refusing to provide a website for a same-sex wedding.

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Smith’s refusal is not personal. It is not about who her potential clients are — it’s about her not supporting what she believes to be a moral wrong.

The dangers of an ever-expanding status-based discrimination

During oral arguments, Justice Ketanji Brown Jackson introduced a distraction that wasted precious time. She posed a convoluted hypothetical about a photography store refusing to take pictures of black children on Santa’s lap.

“Their policy is that only white children can be photographed with Santa in this way because that’s how they view the scenes with Santa [in the movie ‘It’s a Wonderful Life’] that they’re trying to depict.”

This faulty, over-imaginative analogy tried too hard to be clever and fell flat. The poor new girl on the court was way out of her depth.

Justice Samuel Alito got the court back on track: “In Obergefell, did the court say that religious objections to same-sex marriage are the same thing as religious or other objections to people of color?”

Waggoner replied, “No. In fact, it said that decent and honorable people hold beliefs about marriage, believing that there’s a gender-differentiated marriage and that that’s based on reasonable religious and philosophical premises.”

Indeed, there is a very real distinction between an innate, protected characteristic like race and a behavioral choice like a same-sex wedding.

Laws may not arbitrarily constrict our ability and our right to determine freely, rationally and responsibly the moral distinction between what is right and what is wrong.

Our ability and duty to discern moral differences is, under the Constitution, to be encouraged and affirmed by governments, not confiscated or summarily overruled.

A battle over “protected status” 

Colorado Solicitor General Eric Olson, arguing the case against Smith, alleged “a status-based discrimination.” Under Colorado’s anti-discrimination law, he said, homosexuality is a “protected characteristic.”

But Gorsuch asked pointedly, “Isn’t religious belief a protected characteristic?”

Certainly, both an atheist and a Christian may through intelligent reasoning arrive at the conclusion that marriage between one man and one woman is morally good and not to be meddled with by expanding it irresponsibly to include “any two persons.” Such a radical expansion devalues the original meaning and purpose of an honorable, age-old institution.

Careful, sober and responsible reasoning leads to moral decision-making about what is moral and what is immoral. It’s an admirable, old-fashioned kind of discrimination, an honorably rational exercise.

Loving speech — not hate speech

The Constitution ensures protection of both freedom of religion and freedom of speech. You can’t prohibit the free exercise of sincere religious beliefs or deny the freedom to speak of them.

Olson himself claimed quite rightly that “you can’t turn someone away because of who they are.” This is an admirably Christian principle taught to us by Jesus himself, who came to call sinners to repentance (Luke 5:32).

But Jesus taught us that we must love the sinner and condemn the sin. He never used hate speech against the sinners who came to him — he did use strong admonitory speech against sin.

For Christians, what some governments want to punish as “hate speech” is really loving speech, a way to exercise our Christian duty, to love our neighbor back to good moral health that will lead ultimately to eternal happiness in heaven.

The views expressed in this opinion article are those of their author and are not necessarily either shared or endorsed by the owners of this website. If you are interested in contributing an Op-Ed to The Western Journal, you can learn about our submission guidelines and process here.

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