How Christian Nationalist are Abusing the First Amendment's Free Speech Clause

On Tuesday, the Supreme Court announced that it will take up the case of 303 Creative LLC v. Elenis. The plaintiff in this case is web designer Lorie Smith, who owns 303 Creative and asserts that she wants to expand her business to include wedding websites. Because she opposes same-sex marriage on religious grounds, Smith does not want to design websites for same-sex weddings, but a Colorado law prohibits businesses that are open to the public from discriminating against gay people.

At issue in this case is the First Amendment, which reads:

Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof; or abridging the freedom of speech, or of the press; or the right of the people peaceably to assemble, and to petition the Government for a redress of grievances.

You might think that Smith and her lawyers at Alliance Defending Freedom would be basing their case on the free exercise clause ("Congress shall make no law...prohibiting the free exercise" of religion). But that's not the case. Their claim is that the Colorado law "censors and coerces the speech of creative professionals whose religious beliefs do not conform to state orthodoxy." In other words, they are equating our guarantee of freedom of speech with the ability of Christians to discriminate based on their religious beliefs. 

There is a lot of complex case law involved in this one, which you can read more about from people like Ian Millhiser and Mark Joseph Stern. But I'd like to focus on some of the history that has led Christian nationalists to shift their legal claims away from the free exercise clause in favor of the free speech clause.

Perhaps the most damning blow to the free exercise clause came from none other than former Supreme Court Justice Antonin Scalia. In 1990 he wrote the majority opinion in the case of Employment Division v. Smith. That was a case filed on behalf of two Native American men who were fired for smoking peyote as part of religious ceremonies at the Native American Church. 

The Court held that the First Amendment's protection of the "free exercise" of religion does not allow a person to use a religious motivation as a reason not to obey such generally applicable laws. Scalia wrote: "To permit this would be to make the professed doctrines of religious belief superior to the law of the land, and in effect to permit every citizen to become a law unto himself." That made it very difficult for Christian nationalists to use the free exercise clause to justify their attempts to skirt generally applicable laws, like the ones that prohibit discrimination.

As Katherine Stewart documented in her book, "The Power Worshippers," it was lawyers like Jay Sekulow, chief counsel at Pat Robertson's American Center for Law & Justice (ACLJ), who "asserted that religion is just speech from a certain, religious point of view. And to prohibit speech of any type on the basis of viewpoint is, by definition, to violate the free speech clause."

Stewart writes about the absurdity of those claims.

One could spill a lot of ink explaining why it is absurd to suppose that religion is no religion after all, but just speech from a religious point of view. But fine arguments are not necessary in this case because the Constitution itself supposes that religion is a category of activity distinct from speech. Why else would the First Amendment take the trouble to guarantee the freedom of religion and then turn around and add a separate and distinct guarantee of the freedom of speech? Indeed, the obvious fact that religion is a distinct activity is essential to make sense of the Establishment Clause.

Another issue at play is the fact that, for Christian nationalists, the free exercise clause of the First Amendment is inextricably tied to the establishment clause ("Congress shall make no law respecting an establishment of religion"). Since they are the ones intent on claiming that the United States is a Christian nation, they really don't like that part of our Constitution, which is why they spend so much time denying or trying to explain away Thomas Jefferson's statement about the First Amendment constructing a wall of separation between church and state.

So freedom of speech is the lever these folks have become intent on using to codify the U.S. as a Christian nation. Over the years, they've been successful in using it to defend their claims of "religious liberty." For example in Windmar vs. Vincent (1981), the Supreme Court ruled that when the U.S. government provides an "open forum," it may not discriminate against speech that takes place within that forum on the basis of the viewpoint it expresses—in this case, against religious speech engaged in by an evangelical Christian organization.

In the 2001 case of Good News Club v. Milford Central School, the court ruled that teaching religion in an after-school program was protected speech. The plaintiffs in that case wanted to set up an after-school program called the Good News Club, which is sponsored by the Child Evangelism Fellowship (CEF).

In the majority opinion, Justice Clarence Thomas wrote that the activities of the CEF were not really religious, after all. He said that they could be characterized, for legal purposes, "as the teaching of morals and character development from a particular viewpoint." That is belied by the group's vision statement, which states that "Our special mission in CEF is to evangelize every child." Their aim is to proselytize, which is why they want to be in schools instead of just churches.

Other cases that Alliance Defending Freedom advertises on its web site as "free speech" issues include: 

1. Right to Life of Central California v. Bonta, which challenged a California law creating a 30-foot buffer of people from “obstructing, injuring, harassing, intimidating, or interfering with” others going inside vaccination sites.

2. Care Net Pregnancy Resource Center of Southeastern Connecticut v. Tong, which challenges a Connecticut law stating that no limited services pregnancy center, with the intent to perform a pregnancy-related service, shall make or disseminate … any statement concerning any pregnancy-related service or the provision of any pregnancy-related service that is deceptive, whether by statement or omission.”

3. Kluge v. Brownsburg Community School Corporation, in which a teacher is suing a school district for firing him because of his refusal to abide by school policy requiring teachers to call students by their preferred gender pronouns and names.

In other words, the lawyers at ADF are defining "free speech" to include the ability to harass, lie, and refuse to treat students with a modicum of respect...all in the name of "religious liberty."

I suspect that when the Supreme Court rules in favor of Lorie Smith, they'll add "the ability to discriminate" to that list of "free speech" rights.