War on Americans' Conscience in Court and Among the States

The Supreme Court's decision Monday to decline a First Amendment case on conscience rights is the latest in a trend that should be of profound concern to pro-business Republicans, libertarians, and anyone else who wants ordinary people to be economically self-sufficient and live according to their beliefs.

The court declined without comment to grant review in Elane Photography v. Willock, a case about a young Evangelical photographer who declined to provide photography services to a private lesbian-commitment ceremony in New Mexico (which did not recognize gay marriage or civil unions).

The decision comes on the heels of several setbacks for political participation and First Amendment expression in the private and public realms.

Mozilla CEO Brendan Eich was fired for a $1,000 donation to a ballot measure supporting traditional marriage in 2008 when Barack Obama and Hillary Clinton also supported traditional marriage. Fox Sports analyst Craig James was fired for saying in 2012 as a Senate candidate that he supports traditional marriage. Internet outlets are censoring conservative speech.

The Obama administration is threatening to shut down Christian-run businesses unless they cover abortion. Arizona’s S.B. 1062, which said business owners can practice their faith in how they run their private business, was vetoed as “anti-gay” legislation by a moderate Republican governor.

In Elane Photography, a Christian photographer is penalized for declining to celebrate gay marriage, with the New Mexico Supreme Court calling it “the price of citizenship.”

Elaine Huguenin (different spelling than company name), a young photographer who—along with her husband Jonathan—are Evangelical Christians who decided against providing professional services to the private lesbian-commitment ceremony. 

In ruling against the Christian couple, the New Mexico Supreme Court chillingly said “The Huguenins are free to … pray to the God of their choice… But there is a price, one that we all have to pay somewhere in our civic life.”

The Alliance Defending Freedom, which represented Elane Photography, petitioned the U.S. Supreme Court to take the case on the grounds that New Mexico was violating the free speech rights of Elaine Huegenin as a photojournalist, compelling her to convey a story celebrating gay marriage that she personally does not support.

The Supreme Court's denial is not the end of debate on the matter on the courts. A decision not to hear the case is not anot legal precedent, and almost all of the High Court’s cases are taken to resolve a split among the twelve federal appeals courts – a condition not present in this case.

So, the odds were always against the Court taking this case, and the justices did not think this case was the right vehicle to explore this issue.

But there are two more cases ongoing in state courts: Craig v. Masterpiece Cakeshop in Colorado, and Baker v. Hands On Originals in Kentucky. In all liklihood, the U.S. Supreme Court will decide eventually whether the First Amendment’s rights of free speech and the free exercise of religion are abridged by these state decisions.

The court's ruling will come at a time when Americans’ right to hold beliefs—religious or otherwise—is under unprecedented attack. Leftists are aggressively using the coercive power of government to force people of faith and their companies or supporting organizations to embrace and promote liberal causes such as gay marriage and abortion, while also waging war by boycott on conservatives in private life.

With the debate having changed so quickly – President George W. Bush campaigned for a constitutional amendment to preserve traditional marriage in 2004 – the Republican Party, and even the Tea Party, does not seem to have realized the stakes have increased dramatically. People’s careers and companies are being ruined because of their faith-based beliefs on gay marriage and other cultural issues.

Until the day when Supreme Court sets this matter right, those who want to defend First Amendment freedoms have two options. The first is to enact state-level Religious Freedom Restoration Acts (RFRAs). There is a congressional RFRA at the federal level, and that is why the U.S. Supreme Court appears poised to strike down Obamacare’s HHS mandate for people and businesses that religiously object to abortion. Arizona’s legislature passed such a RFRA bill in S.B. 1062 (one that actually just broadened a RFRA already on the books), which Gov. Jan Brewer – a moderate Republican – vetoed.

The second option is people voting with their feet through federalism. Currently 19 states have broad RFRAs that respect rights of conscience, and people of faith will over time move to those states. Although things would have to get significantly worse before people of faith uproot from their current homes to relocate, millions of Americans – especially younger ones just starting their careers, getting married, and looking for a place to settle – regularly consider job-related moves. This will become a factor for many young devout Christians and other people of traditional faith as they decide where to put down roots. The Framers of the Constitution deliberately left states as the “laboratories of democracy,” and now they will experiment with measures to safeguard the personal beliefs of over 100 million Americans who are devout adherents of traditional faiths.

The stakes are incredibly high. If you cannot work for someone else, and you cannot work for yourself, you can’t earn a paycheck. That means you’re unable to support yourself or your family. You’d be completely dependent on government welfare, and could also be in risk of losing your children if you cannot provide a stable environment for them. It is the most disturbing form of coercion, one that can destroy lives and families.

And it is utterly incompatible with the very purposes for which America was founded. The first permanent settlers of this nation came here precisely for the religious freedom to speak their beliefs – whether political or religious – and live their lives according to their personal faith. The First Amendment was written to enshrine those liberties as fundamental rights that would trump the compulsive power of government. The loss of those rights would take America to a dark place as a nation. 

Ken Klukowski is senior legal analyst for Breitbart News. Follow him on Twitter @kenklukowski.


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