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Robert Jackson’s Barnette Opinion Is Back

Let’s take a stroll down Memory Lane.

You, faithful reader of this column, may recall that in April 2022, we looked at U.S. Supreme Court Justice Robert Jackson’s 1943 opinion in West Virginia State Board of Education v. Barnette.

In short, Barnette struck down a law that compelled people to engage in speech violating their religious beliefs.

As Jackson wrote, “To sustain (this law compelling speech) we are required to say that a Bill of Rights (that) 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.”

West Virginia sought to justify the challenged law, which required pupils to say the Pledge of Allegiance, by saying it promoted national unity.

The court’s answer was this: “National unity as an end (that) officials may foster by persuasion and example is not in question. The problem is whether under our Constitution compulsion as here employed is a permissible means for its achievement.”

To put it in current First Amendment terms, Barnette doesn’t doubt the government interest in promoting national unity. However, requiring pupils to say the pledge isn’t sufficiently tailored to that interest. Thus, requiring pupils to say the pledge violates the First Amendment.

Now let’s fast forward to 2022.

Jackson’s Barnette opinion is back.

It arises in 303 Creative LLC v. Elenis, a First Amendment challenge to Colorado’s effort to compel speech. The Supreme Court will hear the challenge on Dec. 5.

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Meet Lorie Smith, who owns her own business, 303 Creative, in Colorado. As part of her business, Smith engages in speech as a graphic artist by designing websites.

Just as West Virginia sought to compel the Barnette plaintiffs to engage in speech violating their religious beliefs, Colorado seeks to compel 303 Creative and Smith to engage in speech violating her religious beliefs.

How? Colorado has a law banning discrimination – in public accommodations – based on many of the usual categories.

Colorado seeks – via this law – to compel speech by 303 Creative and Smith: Not the pledge but designing websites for non-traditional weddings.

Maybe you would engage in both forms of speech. Maybe you would engage in one. Maybe you would engage in neither. For present purposes, it doesn’t matter, because it’s beyond 303 Creative and Smith’s point.

Their main point is that compelling someone to engage in such speech violating the person’s religious beliefs violates the First Amendment’s Free Speech Clause.

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If Colorado can do what it seeks to do here, then what’s next? May government – as 303 Creative and Smith mused in asking the court to hear their challenge – compel “an Orthodox Jewish ad agency … to create copy for pork producers”?

Or, as 303 Creative and Smith note in their brief, may government compel “atheist musicians to perform at religious ceremonies”?

Or think of it this way: May government compel liberal lawyers to take on clients who seek to promote conservative causes, thereby compelling the lawyers to engage in speech violating the lawyers’ liberal religious beliefs?

Please imagine the uproar that one would arouse. Just imagine.

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Sometimes First Amendment challenges aren’t complicated, and it doesn’t serve the law well to make them complicated.

This may be one of those challenges.

So what can complicate this one?

303 Creative and Smith answer that by quoting both Jackson’s Barnette opinion from 1943 and another Supreme Court opinion from 2018: “At bottom, this ‘case is made difficult not because the principles of its decision are obscure’ but because of the context. After all, officials have frequently sought to ‘coerce uniformity of sentiment in support of some end thought essential to their time and country.’ But (the Supreme) Court has never let the government violate artists’ freedom of conscience or compel them to ‘mouth support for views they find objectionable.'”

The author’s note on the Nov. 25 Thanksgiving column, incomplete in one print edition, was: Hilary Elf passed from earthly life to eternal life on Divine Mercy Sunday, April 11, 2021, the third anniversary of her and Randy Elf’s engagement (#KurtzElfWedding). The full 2021 eulogy, delivered in Jamestown, is at https://works.bepress.com/elf/100 (video) and https://works.bepress.com/elf/101 (text).

COPYRIGHT ç 2022 BY RANDY ELF

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