Americans who still believe that civil liberty is, by definition, the relative absence of governmental restraint upon the freedom of speech, the relative absence of restraint upon religious practice, the absence of prior restraint upon the press and other basic liberties (e.g., life, liberty, and the pursuit of happiness relative to civil life) need to assert their conviction or those who have a utopian eschatology, a vision of the future that cannot tolerate dissent, that does not include religious liberty or any other civil liberties will continue to grow.

A majority of the honorable Supreme Court of the United States has recently judged that, whereas as recently as 2013 the court had asserted that marriage law is the province of the states, homosexuals have a constitutional right under the 14th amendment to civil marriage. Some of the dissenting opinions, most especially that of Justice Thomas, however, warn that religious liberty is now in serious jeopardy. That warning is not hyperbole. Brad Avakian, Oregon Labor Commissioner, has not only fined Aaron and Melissa Klein $135,000 for refusing to violate their conscience, for the free exercise of religion, but he has also issued a gag order demanding that the Kleins “cease and desist” from speaking and writing publicly about their refusal to participate in a homosexual wedding. The order says:

The Commissioner of the Bureau of Labor and Industries hereby orders [Aaron and Melissa Klein] to cease and desist from publishing, circulating, issuing or displaying, or causing to be published … any communication to the effect that any of the accommodations … will be refused, withheld from or denied to, or that any discrimination be made against, any person on account of their sexual orientation.

It is not unusual for a judge to issue a gag order on parties in a civil or criminal proceeding, while it is underway. As near as I can determine, however, Avakian is an elected official but not a judge. It seems unusual for a labor commissioner (or any official of that sort) to issue such a cease and desist order. An administrative law judge has already rejected Avakian’s action but the commissioner has persisted. The attorney for the Kleins is surely right when he calls this order an “outrageous abuse.” Judging by Avakian’s Twitter feed he would seem to be a partisan on one side of the issue of same-sex marriage.

If Avakian is acting according to Oregon law (which will certainly be tested in court) it would not be the first time that Oregon has ignored basic civil liberties. J. Gresham Machen complained in 1933:

That right [civil and religious liberty] has been attacked in America in recent years in the most blatant possible ways. In Oregon, a law was actually passed some years ago requiring all children to attend the public schools—thus taking the children from the control of their parents and placing them under the despotic control of whatever superintendent of education might happen to be in office in the district in which they resided. In Nebraska, a law was passed forbidding the study of languages other than English, even in private schools, until the child was too old to learn them well. That was really a law making literary education a crime. In New York, one of the abominable Lusk Laws placed even private tutors under state supervision and control.

Avakian’s actions demonstrate the weakness of Justice Kennedy’s language, written in the majority opinion in Obergefell:

Finally, the First Amendment ensures that religions, those who adhere to religious doctrines, and others have protection as they seek to teach the principles that are so fulfilling and so central to their lives and faiths.

The majority seems to assume that religion is something that exists in church, in temple, in the mosque, or in the home but that is sequestered from daily life. This is not what the Founders of our Republic assumed nor is it what they wrote. The first Amendment speaks of the “free exercise of religion.

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