Americans are grappling with how to integrate the political popularity of same-sex marriage with increasingly unpopular religious expression. “Popular religious views are easy enough to defend,” Justice Neil Gorsuch observed in his concurring opinion in Masterpiece Cakeshop, Ltd. v. Colorado Civil Rights Commission. “It is in protecting unpopular religious beliefs that we prove this country’s commitment to serving as a refuge for religious freedom.”
This isn’t the first popularity contest our country has witnessed. An example from our mid-century experience provides a valuable lesson on this latest challenge to free speech. In 1935, a Pennsylvania public high school expelled Lillian and William Gobitis for refusing to salute the flag. In 1940, eight of the nine justices of the United States Supreme Court upheld their expulsion as necessary to national unity as “the basis for national security.”
It was a dark day for the First Amendment. The Gobitis family were of the Jehovah’s Witness faith. Their religious beliefs precluded their participation in what most Americans view as a simple, highly symbolic act of citizenship.
Three years later, Marie and Gathie Barnett, also Jehovah’s Witnesses who were punished for refusing to salute the flag, would vindicate the Gobitis siblings — and the First Amendment — in West Virginia State Board of Education v. Barnette. (A filing clerk misspelled the Barnetts’ surname.)
The late 1930s were a time of tremendous global upheaval. Indeed, as each of these cases wound its way to the Supreme Court, the United States would move from neutrality to entry into a world war after the unimaginable attack on its naval base in Pearl Harbor. In those times, an American’s failure simply to raise his hand in salute to the flag could find him on the wrong side of the law.
Yet the Barnette court rightly rejected the Gobitis demand for national cohesion at the expense of the First Amendment. As Justice Robert H. Jackson wrote for the majority in Barnette, “to sustain the compulsory flag salute we are required to say that a Bill of Rights which guards the individual’s right to speak his own mind, left it open to public authorities to compel him to utter what is not in his mind.” Even in times of global war against aggressive fascism, Jackson explained, the First Amendment was paramount. Why? Because “those who begin coercive elimination of dissent soon find themselves exterminating dissenters. Compulsory unification of opinion achieves only the unanimity of the graveyard.”
The Gobitis decision led to increased and intense persecution of Jehovah’s Witnesses, an error that was corrected only by the decision in Barnette. And the world would soon see the devastating result of such “unanimity” on black-and-white newsreels.
Today, in their zeal to press a popular political agenda, aggressive though well-meaning government officials can do great damage to the Bill of Rights. Popular opinion may not be on the side of people like our clients, Aaron and Melissa Klein, but the Constitution protects their right to differ.
Aaron and Melissa Klein sold only custom wedding cakes. When they declined to customize a cake for a same-sex wedding ceremony — a simple yet highly symbolic act — the State of Oregon punished their speech, or rather, their polite refusal to speak. In imposing a $135,000 penalty, the state sought to compel them to speak a message the government approved or go out of business.
The Kleins’ situation bears a similarity to Jack Phillips’s in Masterpiece Cakeshop. Although in that decision the Court made clear that state officials may not be hostile to the religious beliefs of its citizens, it left unanswered the more critical question: whether the government can compel citizens to create a message, popular or not, contrary to their religious beliefs.
How might Justice Jackson respond to a state agency compelling the speech of one of its citizens? He’d probably be against it.
“There is no mysticism in the American concept of the State or of the nature or origin of its authority,” Jackson wrote in Barnette. “We set up government by consent of the governed, and the Bill of Rights denies those in power any legal opportunity to coerce that consent. Authority here is to be controlled by public opinion, not public opinion by authority.”
Just because Aaron and Melissa express a message that differs from reigning cultural norms is no reason to upend the First Amendment; rather, as Justice Jackson observed, the amendment’s very essence means that they have a right to differ from that more popular message :
Freedom to differ is not limited to things that do not matter much. That would be a mere shadow of freedom. The test of its substance is the right to differ as to things that touch the heart of the existing order.
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. If there are any circumstances which permit an exception, they do not now occur to us.
That timeless truth, recognized by the Supreme Court, is an essential First Amendment precedent, unchanged for 75 years.
Like the Gobitis and Barnett children, free Americans, including Aaron and Melissa Klein, should not be compelled by the government to create a message that conflicts with their deepest convictions. The Constitution protects speech — popular or not — from condemnation by the government. In other words, no government official, “high or petty,” can bankrupt a business because he finds the owner’s speech unpopular.
Aaron and Melissa have asked the U.S. Supreme Court to uphold the promise, secured by the Barnett sisters, that they may operate their business according to their beliefs, without fear that the government will compel them to create a message contrary to their religious convictions. Now is the time for the Court to reinforce the principle that freedom of expression for popular speech means freedom of expression for speech some deem unpopular. As Justice Jackson observed, a Bill of Rights that guards our right to speak our mind also prohibits the government from compelling us to utter what we do not believe.
Jeremy Dys and Mike Berry are attorneys for First Liberty Institute, a non-profit law firm dedicated to defending religious freedom for all.