The reality is that no person and no private institution can escape the ceaseless initiatives by legal activists, judicial activists, cities, states, and, depending upon the Administration, the federal government to re-standardize American public as well as private life, and search out and cancel dissenters.
In recent years, including this presidential year, cases in the Supreme Court have set out what are the latest examples of the coercive and centralizing agenda of progressives for American culture and what remains of a common moral life. And those cases have served to highlight Republican versus Democratic differences in ways not usually noted. Major “social issue” cases typically cause the filing of 30-40 “friends of the court” briefs both in support of and in opposition to the question to be decided. In essential ways, this contemporary phenomenon is not different from legislative lobbying by interest groups. And now regularly, large blocks of members of Congress of both political parties file such briefs in the Court.
This essay discusses five contemporary cases. Detailed discussions of the precise legal and constitutional issues are downplayed. Instead, the focus is on how far down into the everyday lives of private individuals and institutions the tidal wave of American progressivism now reaches.
In two cases, the Supreme Court turned back attempts to control freedom of speech – but, more importantly, freedom of thought. That is to say, these attempts, one by a state legislature and the other by a state agency, were not “classic” free speech cases in which the Court scrutinizes whether governments at various levels have gone too far in regulating or proscribing speech, rather, they were cases in which government was prescribing speech.
In Life Advocates (2018), the Court by the narrowest of 5-4 rulings decided that the California legislature could not require crisis-pregnancy centers to profess something that was the exact opposite of their reason for existence—that is, promote abortion by conspicuously posting signs at their centers about the availability and costs of abortion. Writing for the majority, Justice Clarence Thomas held that “Governments must not be allowed to force persons to express a message contrary to their deepest convictions. Freedom of speech secures freedom of thought and belief.” Justice Ginsburg joined the dissent.
Ninety-four Democratic members of Congress, including Speaker of the House Nancy Pelosi and Kamala Harris as well as eventual presidential candidates Cory Booker, Bernie Sanders, and Elizabeth Warren, filed a brief against the pregnancy center. They argued that the newly-enacted California statute was just a routine example of the kind of laws requiring public notices. One hundred and forty-four Republican members of Congress filed a brief in support of the pregnancy center. The Trump Justice Department filed a brief arguing its own analysis of the free-speech question, which analysis had the effect of supporting the clinic.
In Masterpiece Cake, also handed in 2018, the Colorado Civil Rights Commission – after a formal investigation of a solitary baker — had ruled that the baker had violated the Colorado Civil Rights Act by refusing to bake a cake celebrating a gay wedding. Baker Jack Phillips had said that to do so would violate his Christian conscience because his cakes were personal expressions of himself. The Court in a majority opinion by Justice Kennedy handed down a qualified 7-2 ruling based on the Free Exercise Clause and on a generalized “duty under the First Amendment” prohibiting hostility to religion. Some members of the Commission had explicitly stated such hostility. For instance, one member said that Philips’ religious objections were of the same kind as those that had been used to justify slavery and the Holocaust. The Court did not make a free speech ruling but did state that hostility to religion included hostility to “religious viewpoint.”
In this case, two hundred eleven Democratic members of Congress, including Nancy Pelosi and Kamala Harris as well as five other Democratic Senators who eventually ran for President, filed a brief against the baker. They argued that gay discrimination under federal civil rights laws would be affected by the case. Thirty-seven corporations, including Amazon, Apple, Uber, Lyft, Marriott, Levi Strauss, and John Hancock, also filed against the baker. Eighty-six Republican members of Congress filed a brief in support. The Trump Justice Department also filed a brief in support.
Like the solitary baker, the Little Sisters of the Poor, a Catholic religious order of women, were not little enough or poor enough to be let alone. When the Trump Administration expanded the previous church exemption from the birth control mandate of the Affordable Care Act (ACA) to include moral and religious exemptions by religious non-profits, the states of Pennsylvania and New Jersey sued, and the Little Sisters joined the suit on the side of the Trump Administration. In Little Sisters (2020), the Court ruled 7-2 for the Trump Administration and the Sisters. In the majority opinion, Justice Thomas said that the decision allowed the Sisters to continue their “faithful service and sacrifice” without “violating their sincerely held religious beliefs.” In dissent, Justice Ginsburg said that the decision leaves women workers to “fend for themselves.”
One hundred and eighty-six Democratic members of Congress, including Nancy Pelosi and Kamala Harris, and the five other Senators who ran for president, filed a brief against the Sisters. They said that the decisions have upset the “balance” between “religious beliefs” and the “public health.” One hundred and sixty-one Republican members of Congress filed for the Sisters, as did the Trump Administration.
In Bostock, decided this year, 206 (!) corporations, arguing strongly that “excluding sexual orientation and gender identity” from civil rights protection “undermine[s] the nation’s business interests,” filed a brief against a private funeral home whose dress code had the effect of prohibiting cross-dressing by an employee. The list of corporations included the most glamorous ones like Amazon, Apple, CBS, Nike, Starbucks, and Ben and Jerry’s, and also AT&T, Bloomberg, Facebook, General Motors, Google, Hilton, John Hancock, JP Morgan, Macy’s, Marriott, Mastercard, San Francisco Giants, Tampa Bay Rays, Lyft, Uber, Walt Disney, Univision, Wells Fargo, and Xerox.
It was legislation—the words of a statute—that was at issue In Bostock. In its decision, the Gorsuch/Roberts Court effectively amended Title VII of the Civil Rights Act to include “sexual orientation.” One hundred fifty Democratic members of Congress, including Nancy Pelosi, Kamala Harris, and the other Senators who ran for President, filed a brief against the funeral home, while only 48 Republican members filed in support of the funeral home. The Trump Department of Justice filed a brief in support.
As far as to what the immediate future holds, especially as to the possible positions of the Department of Justice, the 2012 decision of the Court in Hosanna-Tabor Evangelical Lutheran Church and School, may be even more instructive. In that lawsuit against a church, a fourth-grade teacher at a Lutheran school, who was also trained and certified as a minister, developed narcolepsy, and her employment terminated for that reason. One might be inclined to think that the possibility of a teacher falling asleep in class might be considered an objective and unbiased basis for termination. But, no; the teacher, asserting that her condition was a disability, filed a civil-rights suit under the federal Americans with Disabilities Act. The Supreme Court unanimously ruled against her, and for the first time recognized a “ministerial exception” to employment laws under both religion clauses of the First Amendment.
More striking, however, than the unanimous ruling of the Court was the content of the brief of the Obama Administration’s Equal Employment Opportunity Commission (EEOC), which held that the Constitution’s religion clauses did not even apply! Chief Justice Roberts, the author of the Court’s unanimous opinion, denounced that “extreme position pressed here by the EEOC” and said that the case concerned a church’s “freedom under the Religion Clauses to select its own minsters.”
A single baker, a single funeral home, a handful of crisis-pregnancy centers, a little tiny and poor group of Catholic nuns, and an individual church selecting its own ministers could not be let alone. The reality is that no person and no private institution can escape the ceaseless initiatives by legal activists, judicial activists, cities, states, and, depending upon the Administration, the federal government to re-standardize American public as well as private life, and search out and cancel dissenters.
Justice Thomas has now articulated the issues of contemporary personal and religious freedom as being beyond freedom of speech and actions. It is freedom of thought: “Freedom of speech secures freedom of thought and belief.” We say what we think, but, in contemporary and future America, will we start to think what we are told to say?
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The featured image is courtesy of Pixabay.