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Complicity and Speech: The Right’s New Effort to Rewrite the First Amendment

Monday, December 4, 2017

In 2013, the Supreme Court held, for the first time in history, that secular businesses could claim a religious exemption from a generally-applicable law based on the religious convictions of their owners. In that case, by a 5-4 vote, the Justices held that Hobby Lobby, a secular business owned by devout Christians, was entitled to a religious exemption from the Affordable Care Act’s contraception coverage mandate, insisting that the law’s requirement that a business’s group health insurance policy provide coverage for contraceptives made the owners complicit in what was, in their view, sinful activity. Now, four years, later, complicity claims are on the rise, and being pressed in new contexts.

The Supreme Court’s ruling in the Hobby Lobby case was based on a novel reading of the Religious Freedom Restoration Act, but that law does not apply to state and local governments. Conservative activists have identified what they hope will be another means of dismantling laws that they dislike: the First Amendment. In case after case, conservative legal activists are trying to weaponize the First Amendment’s guarantee of freedom of speech, offering a sweeping view of the First Amendment’s protection against compelled speech. In their view, the government cannot make businesses say or do anything that they believe makes them complicit in sin or contradicts their religious beliefs.

These new complicity claims should fail: they contradict fundamental First Amendment principles and would drive a stake through antidiscrimination laws and other legal protections that safeguard the rights of all. They undermine, not advance, the cause of freedom of speech.

This term, the Supreme Court will confront these new complicity claims. This week, the Justices will hear oral argument in Masterpiece Cakeshop v. Colorado Civil Rights Commission, which involves a commercial baker’s refusal to serve a same-sex couple planning a wedding celebration. The company insists that its cakes are an art form, and that requiring it to provide a cake for a same-sex wedding impermissibly compels its speech.

The First Amendment means that the government has no power to restrict or compel expression because of its message or viewpoint. For that reason, the Supreme Court has treated laws that regulate speech on the basis of content or viewpoint as presumptively unconstitutional, requiring the government to satisfy strict scrutiny, the most demanding test in constitutional law. But public accommodations laws that require businesses to serve customers without discriminating against them don’t single out disfavored ideas: they apply across-the-board to a wide range of businesses in order to protect the equal dignity of customers. It would take a radical revision of the First Amendment to condemn laws such as these.

That’s exactly what the challengers are seeking. In Masterpiece Cakeshop, the company claims that it cannot be compelled to bake a cake for a same-sex couple because its owner is opposed to same-sex marriage. But public accommodations laws don’t regulate speech at all; they simply forbid businesses to refuse to serve customers on the basis of race, sex, sexual orientation and other protected characteristics. In other words, they regulate what businesses do, not what they say. For good reason, efforts to invoke the First Amendment to strike down public accommodations laws have repeatedly been rejected by the Supreme Court. Baking a cake—although it may be artistic—is not inherently expressive, and does not count as speech protected by the First Amendment. Indeed, even some of the strongest defenders of free speech in the United States, including Floyd Abrams and Professor Eugene Volokh of UCLA Law School, have insisted that this is a bridge too far. As Professor Volokh argued to the Justices in a brief filed in this case, “antidiscrimination laws . . . should not be stymied by attenuated claims of incidental burden, where no real constitutional problem is present.” Masterpiece’s claim of complicity, as the brief signed by Floyd Abrams and other noted scholars made clear, “is precisely what might have been said by proprietors of segregated lunch counters who refused to serve potential customers based upon their race. It is hardly a basis for holding the application of an antidiscrimination law unconstitutional.”

In short, Masterpiece’s claim, if accepted, would create a massive hole in our nation’s civil rights laws, empowering businesses to discriminate against disfavored persons, reducing same-sex couples and others to second-class status. The First Amendment cannot be read as a license for commercial businesses to discriminate.

The Roberts Court has been called “the strongest First Amendment Supreme Court in our history,” but even Justices, including Chief Justice John Roberts and Justice Anthony Kennedy, who broadly interpret the First Amendment’s guarantee of the freedom of speech, should be skeptical of these new complicity claims. They are not grounded in basic First Amendment principles, they ignore the Court’s precedents, and they would give businesses a license to take away the rights of those they serve. Our Constitution’s commitment to robust protection of speech does not require gutting protections that safeguard the equal dignity of all persons.