A First Amendment that survived — and even thrived — during the darkest hours of World War II may begin to die a sad death at the hands of troubled transgenders and angry abortionists.
On January 9, 1942 — at a time when the fate of our nation hung in the balance — the West Virginia Board of Education passed a resolution intended to shore up patriotic fervor:
All teachers and pupils shall be required to participate in the salute honoring the Nation represented by the Flag; provided, however, that refusal to salute the Flag be regarded as an act of insubordination, and shall be dealt with accordingly.
While this resolution seems strange to modern eyes, it was passed in the middle of arguably the worst military crisis in the nation’s history. The U.S. Pacific Fleet lay in ruins in Pearl Harbor, U.S. forces were in headlong retreat across the Pacific theater, and 120,000 American and Filipino troops were trapped in the Bataan Peninsula — about to enter a living hell endured by few Americans before or since. In that terrifying time, patriotism was a matter of national survival.
Yet in the middle of war, a small group of Jehova’s Witnesses took perhaps the least popular political stand of all time: They refused to salute the flag and recite the Pledge of Allegiance. Expelled from school, they filed suit, and in 1943 the Supreme Court issued its ruling — at a time when the outcome of the war was still very much in doubt, and American casualties were mounting into the hundreds of thousands. Verdict: The students could not be compelled to speak state-mandated words. Indeed, if the First Amendment meant anything, it meant that the state could not compel those students to speak what they did not believe. The court’s words echo today:
If there is any fixed star in our constitutional constellation, it is 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.
Or do they? First Amendment rights that survived the threat of Axis domination might not survive the culture war. Two laws — one on each coast — purport to cast the “fixed star” far from the constitutional constellation and compel Americans to voice words that are false, morally repugnant, or both.
California has public programs that provide immediate free or low-cost access to comprehensive family planning services (including all FDA-approved methods of contraception,) prenatal care, and abortion for eligible women. To determine whether you qualify, contact the county social services office.
A phone number follows. In other words, the state of California is requiring pro-life institutions to inform women that they can potentially receive free abortions, and then the state requires them to post a referral phone number. The message is clear: Facilitate abortions or be fined into oblivion.
Already, pregnancy centers have indicated they’ll close rather than comply. But for the radical abortion Left, that’s exactly the goal:
To Amy Everitt, state director of NARAL Pro-Choice California, which championed the law, [closing the pregnancy center] wouldn’t be such a bad thing. “If that’s what they choose instead of providing fact-based information,” she told MSNBC, “maybe the women in our state are better served.”
On the East Coast, the most recent round of coerced speech serves as the leading edge of the sexual revolution — transgender rights. The New York City Commission of Human Rights has issued “new guidance that makes clear what constitutes gender identity and gender expression discrimination under the NYC Human Rights Law.” You can now face steep monetary penalties for, among other things, “intentionally failing to use an individual’s preferred name, pronoun, or title” or “refusing to allow individuals to use single-sex facilities, such as bathrooms or locker rooms, and participate in single-sex programs, consistent with their gender identity.” Failure to comply can result in fines of up to $250,000.
Let’s not mince words: New York is making lies mandatory. Women do not become men through clothing changes, surgical mutilation, or mere expressions of preference. And calling a man “she” or “her” is to participate in a monstrous, destructive deception. Moreover, it used to be indecent exposure to flash a penis in a women’s restroom, now it’s apparently a “human right” — so long as the penis belongs to a deeply troubled and confused man.
The Supreme Court will ultimately have the last word on compelled speech, but so far the outlook is hardly promising. The Ninth Circuit has refused to call a halt to California’s Reproductive FACT Act, and the Supreme Court is increasingly hostile to the First Amendment when it enables dissent from the sexual revolution. Justice Kennedy recently did grave damage to a cornerstone of free speech — the freedom of association — when he ruled that Christian student groups could be forced to open themselves to non-Christian leadership. And just last year, his lawless opinion on same-sex marriage in Obergefell convincingly demonstrated that — to him – constitutional reasoning takes a back seat to emotive politically correct posturing.
The stakes are clear. If a pro-life American can be required to facilitate abortion access, or if a person can be required to lie to avoid offending the so-called transgendered, then the “fixed star” in our constitutional constellation will no longer reside in a robust First Amendment. Only America’s most intolerant cultural revolutionaries and their enabling judges will know where to find it.
— David French is an attorney and a staff writer at National Review.