Among the many amicus briefs offered to the Supreme Court, likely the best at answering the claim of stigma mitigation against the constitutional right to free speech was offered by Robert George, professor of law at Princeton University. George compellingly shows that principles established by the Supreme Court recognize the constitutional right to free speech cannot be curtailed in the interest of hurt feelings, however strong the hurt is.
The 303 Creative vs. Elenis case, which will presumably be announced near the end of June, is one of the most crucial, perhaps the most crucial case to be decided by the Supreme Court in the war between sexual liberation and religious liberty. It is being analyzed by the court as a free speech case, although freedom of religion and conscience really lie behind it, and was reviewed by this writer in two articles late last year, one before, and one after oral arguments before the Supreme Court.
As noted particularly in the second article, the free speech claim against requiring the proprietor of 303 Creative, Lori Smith, to provide web design for same-sex weddings is strong. Providing web design for same-sex weddings is now required by common court interpretation of the Colorado Anti-Discrimination Act (CADA). But free speech for what is obviously expressive behavior seemed to be strongly defended by a majority of justices at the December 5 oral arguments.
As the secular and religious left has attacked the Judeo-Christian tradition in recent years, both in law and in society, with antidiscrimination laws and (where possible) speech restrictions, the Supreme Court has defended both, although free speech is much stronger in current jurisprudence. While the Left has condemned this as favoritism to the Right, it is actually simply the straightforward application of the law, as was noted more than a year ago by Mark Rienzi of the Becket Fund for Religious Liberty, and allows Americans with sharply different opinions to live together.
Using Social Stigma Claims to Overcome Free Speech
Faced with a court intent on protecting freedom of religion and speech, the Left has turned to the claim that civil rights law, and behind it, the Fourteenth Amendment, mandates pro-active government measures to remove social stigma. This is really a very blatant effort to gain what social conservatives have complained about for years, the claim of a right not to be offended. It was recently discussed by well-known researcher in sexual behavior and the family, Mark Regnerus, of the Austin Institute for the Study of Family and Culture in a Public Discourse article.
The challenge to defenders of free speech in the wider society is daunting. The majority of Americans now accept both homosexuality and same-sex marriage, and as Regnerus notes, “All of the major American medical, sociological, and psychological professional organizations endorse LGBTQ claims, including gender medicine for minors, an industry now buttressed by over 400 clinics.” When one considers that ten or twenty years ago, many of these very intelligent people would never have thought of endorsing the sexual mutilation of minors, and their professional associations (if not the majority of practitioners) advance it today as “science,” the extent of cultural conquest is staggering. To be against LGBT claims from the standpoint of common sense (and certainly religious belief) is to be against science. The American Psychological Association presented an amicus brief in support of the State of Colorado’s claims of a right to compel speech in requiring Lori Smith use her artistic talents to provide same-sex wedding web design.
Regnerus pointed out that this situation proves Chief Justice John Roberts was correct in his doubt, expressed in his dissent from the same-sex marriage decision, Obergefell vs. Hodges (2015), that the promise in the decision of free speech protection for opponents of same-sex marriage would be honored. Roberts said the majority decision “graciously suggests that religious believers may continue to ‘advocate’ and ‘teach’ their views of marriage.” However, the APA claims that social stigma adversely affects the health of LGBT identifying persons. It proposes denying free speech to Lori Smith by requiring compelled speech. When this bridgehead is established, speech against homosexuality (or silence in place of approval), could become illegal in many situations, as is the case in Canada and other Western countries.