Saturday 1st October 2022

Home » Frontpage » Currently Reading:

Forced Speech Is “Free” Speech?

October 11, 2021 Frontpage No Comments

By DEACON MIKE MANNO

Okay, how can it be that forced speech is free speech, or even that suppressed speech is also free speech? Well, that’s the brainchild of Judge Mary Briscoe, a Clinton appointee to the Tenth Circuit Court of Appeals, which is now being airmailed to the United States Supreme Court.
The case comes from Colorado and arises out of the state’s public accommodation law, the same one that the state Civil Rights Commission used to try to punish Masterpiece Cakeshop owner Jack Phillips for refusing to bake a wedding cake for a same-sex wedding. This one has similar issues except it involves wedding promotional videos.
Lorie Smith is a web designer and graphic artist who works out of her own studio, 303 Creative. Smith, the sole owner of 303 Creative, sincerely believes that same-sex marriage conflicts with God’s law and as such violates her deeply held Christian beliefs. As a result she will not offer her services to create wedding websites to celebrate those weddings.
In addition, she plans to publish a statement on her website explaining her religious objections and her policy against “creating websites promoting and celebrating ideas or messages that violate my beliefs.”
Colorado’s law, however, prohibits discrimination in two areas of concern for Ms. Smith:
First is what is referred to as the Accommodation Clause: “It is a discriminatory practice and unlawful for a person…to refuse, withhold from, or deny to an individual or a group, because of disability, race, creed, color, sex, sexual orientation, marital status, national origin, or ancestry, the full and equal enjoyment of the goods, services . . . or accommodations of a place of public accommodation.”
And a companion provision forbids any public notice “that indicates that the full and equal enjoyment of goods, services…or accommodations…will be refused, withheld or denied,” referred to as the Communication Clause.
Thus before she went public with her plans, she filed a pre-enforcement action against the state seeking to adjudicate her rights and to prevent the state from enforcing either clause of the public accommodation law against her.
She lost in the district court and on appeal the two Clinton appointed justices, Mary Briscoe and Michael Murphy, ruled against her while the Bush-appointed Timothy Tymkovich, serving as chief judge, penned a fiery dissent.
The court’s majority decision starts off well enough for Smith clearly rejecting the state’s arguments that she lacks standing or an injury; the court found that she has a reasonable basis for concluding that if she moves ahead with her plans she will be prosecuted.
It wrote that while Smith’s goal may be to only discriminate against same-sex marriage, it is actually discrimination against same-sex couples and would expose her to liability under the state law, noting that the law, while providing some exceptions, did not provide a religious exception.
Turning to the question of Smith’s free speech rights, the court did recognize her argument that the creation of wedding websites is pure speech and cited several cases where wedding videos and invitations have been held as speech. And it recognized that the First Amendment has protections against compelled speech and that those protections apply to unsophisticated expressions as well as those by professional publishers.
But then it turned to a key question. In order to show that such a restriction is legal and meets the constitutional test of strict scrutiny, the government must show a compelling interest for the statute to survive constitutionally. “Here, Colorado has a compelling interest in protecting both the dignity interest of members of marginalized groups and their material interests in accessing the commercial marketplace.”
“The Accommodation Clause is, however, narrowly tailored to Colorado’s interest in ensuring ‘equal access to publicly available goods and services.’ When regulating commercial entities, like Appellants, public accommodations laws help ensure a free and open economy. Thus, although the commercial nature of Appellants’ business does not diminish their speech interest, it does provide Colorado with a state interest absent when regulating noncommercial activity . . . recognizing the changing nature of the American economy and of the importance, both to the individual and to society, of removing the barriers to economic advancement and political and social integration that have historically plagued certain disadvantaged groups.”
The court then compared Smith’s services to a monopoly in upholding the Accommodation Clause restrictions in the Colorado law:
“Excepting Appellants from the Accommodation Clause would necessarily relegate LGBT consumers to an inferior market because Appellants’ unique services are, by definition, unavailable elsewhere…our analysis emphasizes the custom and unique nature of Appellants’ services….LGBT consumers may be able to obtain wedding-website design services from other businesses; yet, LGBT consumers will never be able to obtain wedding-related services of the same quality and nature as those that Appellants offer. Thus, there are no less intrusive means of providing equal access to those types of services.”
Then turning to the Communication Clause the court held that the First Amendment does not protect the statement Smith wants to place on her website explaining her belief in traditional marriage and the reasons why she would refuse work for same-sex weddings.
The court wrote, “Having concluded that the First Amendment does not protect Appellants’ proposed denial of services, we also conclude that the First Amendment does not protect the Proposed Statement. Yet, the Proposed Statement also expresses an intent to deny service based on sexual orientation — an activity that the Accommodation Clause forbids and that the First Amendment does not protect. Thus, the Proposed Statement itself is also not protected and Appellants’ challenge to the Communication Clause fails.”
The dissent pounced: “The majority takes the remarkable — and novel — stance that the government may force Ms. Smith to produce messages that violate her conscience. In doing so, the majority concludes not only that Colorado has a compelling interest in forcing Ms. Smith to speak a government-approved message against her religious beliefs, but also that its public-accommodation law is the least restrictive means of accomplishing this goal. No case has ever gone so far. . . .
“Indeed, this case represents another chapter in the growing disconnect between the Constitution’s endorsement of pluralism of belief on the one hand and anti-discrimination laws’ restrictions of religious-based speech in the marketplace.
“It seems we have moved from ‘live and let live’ to ‘you can’t say that.’ While everyone supports robust and vigorously enforced anti-discrimination laws, those laws need not and should not force a citizen to make a Hobson’s choice over matters of conscience. . . . But what Colorado cannot do is turn the tables on Ms. Smith and single out her speech and religious beliefs for discriminatory treatment under the aegis of anti-discrimination laws.
“The First Amendment prohibits states from ‘abridging the freedom of speech’ or the ‘free exercise’ of religion. And the freedom to speak necessarily guarantees the right to remain silent. So the majority ushers forth a brave new world when it acknowledges that [the state law] compels both speech and silence — yet finds this intrusion constitutionally permissible. [It] forces Ms. Smith to violate her faith on pain of sanction both by prohibiting religious-based business practices and by penalizing her if she does speak out on these matters in ways Colorado finds ‘unwelcome’ or ‘undesirable’.”
The appellate court made “a very disturbing decision that what Lorie does is custom art and is speech that should be given the highest protection under our Constitution and yet the Tenth Circuit held that Colorado can force her to create messages that violate her beliefs,” ADF senior counsel Kate Anderson told my radio audience.
“What they are trying to force her to do is to violate her religious beliefs by promoting a view of marriage that is not in accord with her beliefs then telling her she cannot promote her view of marriage on her own website,” she added.
Now, on to the Supreme Court.
(You can reach Mike at: DeaconMike@q.com and listen to him every Thursday at 10 a.m. CT on Faith On Trial on IowaCatholicRadio.com.)

Share Button

2019 The Wanderer Printing Co.

Vatican and USCCB leave transgender policy texts unpublished

While U.S. bishops have made headlines for releasing policies addressing gender identity and pastoral ministry, guidelines on the subject have been drafted but not published by both the U.S. bishops’ conference and the Vatican’s doctrinal office, leaving diocesan bishops to…Continue Reading

Biden says Pope Francis told him to continue receiving communion, amid scrutiny over pro-abortion policies

President Biden said that Pope Francis, during their meeting Friday in Vatican City, told him that he should continue to receive communion, amid heightened scrutiny of the Catholic president’s pro-abortion policies.  The president, following the approximately 90-minute-long meeting, a key…Continue Reading

Federal judge rules in favor of Gov. DeSantis’ mask mandate ban

MIAMI (LifeSiteNews) – A federal judge this week handed Florida Republican Gov. Ron DeSantis another legal victory on his mask mandate ban for schools. On Wednesday, Judge K. Michael Moore of the Southern District of Florida denied a petition from…Continue Reading

The Eucharist should not be received unworthily, says Nigerian cardinal

Priests have a duty to remind Catholics not to receive the Eucharist in a state of serious sin and to make confession easily available, a Nigerian cardinal said at the International Eucharistic Congress on Thursday. “It is still the doctrine…Continue Reading

Donald Trump takes a swipe at Catholics and Jews who did not vote for him

Donald Trump complained about Catholics and Jews who did not vote for him in 2020. The former president made the comments in a conference call featuring religious leaders. The move could be seen to shore up his religious conservative base…Continue Reading

Y Gov. Kathy Hochul Admits Andrew Cuomo Covered Up COVID Deaths, 12,000 More Died Than Reported

When it comes to protecting people from COVID, Andrew Cuomo is already the worst governor in America. New York has the second highest death rate per capita, in part because he signed an executive order putting COVID patients in nursing…Continue Reading

Prayers For Cardinal Burke . . . U.S. Cardinal Burke says he has tested positive for COVID-19

VATICAN CITY (CNS) — U.S. Cardinal Raymond L. Burke said he has tested positive for the virus that causes COVID-19. In an Aug. 10 tweet, he wrote: “Praised be Jesus Christ! I wish to inform you that I have recently…Continue Reading

Democrats Block Amendment Banning Late-Term Abortions, Stopping Abortions Up to Birth

Senate Democrats have blocked an amendment that would ban abortions on babies older than 20 weeks. During consideration of the multi-trillion spending package, pro-life Louisiana Senator John Kennedy filed an amendment to ban late-term abortions, but Democrats steadfastly support killing…Continue Reading

Transgender student wins as U.S. Supreme Court rebuffs bathroom appeal

WASHINGTON (Reuters) -The U.S. Supreme Court on Monday handed a victory to a transgender former public high school student who waged a six-year legal battle against a Virginia county school board that had barred him from using the bathroom corresponding…Continue Reading

New York priest accused by security guard of assault confirms charges have now been dropped

NEW YORK, June 17, 2021 (LifeSiteNews) — A New York priest has made his first public statement regarding the dismissal of charges against him.  Today Father George W. Rutler reached out to LifeSiteNews and other media today with the following…Continue Reading

21,000 sign petition protesting US Catholic bishops vote on Biden, abortion

More than 21,000 people have signed a letter calling for U.S. Catholic bishops to cancel a planned vote on whether President Biden should receive communion.  Biden, a Catholic, supports abortion rights and has long come under attack from some Catholics over that…Continue Reading

Bishop Gorman seeks candidates to fill two full time AP level teaching positions for the 2021-2022 school year in the subject areas of Calculus/Statistics and Physics

Bishop Thomas K. Gorman Regional Catholic School is a college preparatory school located in Tyler, Texas. It is an educational ministry of the Catholic Diocese of Tyler led by Bishop Joseph Strickland. The sixth through twelfth grade school provides a…Continue Reading

Untitled 5 Untitled 2

Attention Readers:

  Welcome to our website. Readers who are familiar with The Wanderer know we have been providing Catholic news and orthodox commentary for 150 years in our weekly print edition.


  Our daily version offers only some of what we publish weekly in print. To take advantage of everything The Wanderer publishes, we encourage you to su
bscribe to our flagship weekly print edition, which is mailed every Friday or, if you want to view it in its entirety online, you can subscribe to the E-edition, which is a replica of the print edition.
 
  Our daily edition includes: a selection of material from recent issues of our print edition, news stories updated daily from renowned news sources, access to archives from The Wanderer from the past 10 years, available at a minimum charge (this will be expanded as time goes on). Also: regularly updated features where we go back in time and highlight various columns and news items covered in The Wanderer over the past 150 years. And: a comments section in which your remarks are encouraged, both good and bad, including suggestions.
 
  We encourage you to become a daily visitor to our site. If you appreciate our site, tell your friends. As Catholics we must band together to rediscover our faith and share it with the world if we are to effectively counter a society whose moral culture seems to have no boundaries and a government whose rapidly extending reach threatens to extinguish the rights of people of faith to practice their religion (witness the HHS mandate). Now more than ever, vehicles like The Wanderer are needed for clarification and guidance on the issues of the day.

Catholic, conservative, orthodox, and loyal to the Magisterium have been this journal’s hallmarks for five generations. God willing, our message will continue well into this century and beyond.

Joseph Matt
President, The Wanderer Printing Co.

Untitled 1

Catechism

Today . . .

AP Casts Confessional Seal as Scandalous ‘Loophole’

The Associated Press published a piece this week casting the confessional seal as sinister. That its reporters would even think to turn a prosaic defense of this venerable privilege into a scandal is a measure of our secularized times. Only until recently would anyone dare suggest 

University of Notre Dame now selling LGBT children’s books, tarot cards at school store

(LifeSiteNews) — The University of Notre Dame campus bookstore is making LGBT ideology and astrology practices available by selling gay children’s books and tarot cards. On Wednesday, The Irish Rover, the campus newspaper, published an article detailing various products available in the school’s store, including content for child

Conservative, anti-woke leader Giorgia Meloni becomes first female Italian Prime Minister

Giorgia Meloni Speech below was deplatformed on Youtube. ROME (LifeSiteNews) – Leader of the Fratelli D’Italia (Brothers of Italy) conservative political party, Giorgia Meloni, won the Italian federal election on Sunday, and is set to become the first female prime minister in the country’s history.

">Great News for Italy. Italy’s new Prime Minister Giorgia Meloni. Giorgia Meloni’s electrifying speech at the World Congress of Families

Bishops, priests and scholars correct Pope Francis’ statement on Holy Communion

(LifeSiteNews) — Four bishops, several priests, and numerous Catholic scholars have signed a statement rebuking Pope Francis for a recent statement about the reception of Holy Communion, according to which “everyone is invited to the supper of the wedding of the Lamb (Re 19:9). To be admitted to the feast all that is required is the wedding garment of faith which comes from the hearing of his Word.” The Pope wrote these words in his…Continue Reading

Biden Commits U.S. To War For Taiwan

By PATRICK J. BUCHANAN If China invades Taiwan to unify it with the mainland, the United States will go to war to defend Taiwan and send U.S. troops to fight the invaders.That is the commitment made the past week by President Joe Biden.Asked by CBS’s Scott Pelley on 60 Minutes if the U.S. would fight…Continue Reading

UN Human Rights Report On Nicaragua . . . Cites Repression, “Attacks On Catholic Church”

By ZELDA CALDWELL (CNA) — The United Nations Human Rights Council (UNHRC) released a report September 13 that condemned the regime of Nicaragua’s President Daniel Ortega and his wife, Vice President Rosario Murillo, citing a “deterioration of the human rights situation.”The report included a compilation of recent incidents in which the Nicaraguan government has attacked…Continue Reading

Thousands Of People . . . March In Ireland To Demand End To Abortion

DUBLIN (LifeNews) — Thousands attended the March for Life in Dublin on September 19. Marchers walked from St. Stephen’s Green to Leinster House to call on the government to address the huge increase in the number of abortions taking place, and to stop keeping women in the dark about positive alternatives to abortion.Eilis Mulroy of…Continue Reading

Who Makes More Money In America?

By TERENCE P. JEFFREY The money earned by American households has grown enormously since 1967, when President Lyndon Baines Johnson was still in office and the hippie generation was celebrating its so-called Summer of Love.The median household income in the United States that year was $50,803 in constant 2021 dollars, according to the Census Bureau’s…Continue Reading

An Attack On Human Life . . . Pope Benedict Condemns “Intrinsic Evil” Of Abortion

By STEVEN ERTELT (LifeNews) — During his time as the leader of the Catholic Church, Pope Benedict was a consistent pro-life voice condemning the evil of abortion. In comments posted on Twitter the morning of September 21, Benedict XVI reminded people that abortion is evil and an attack on human life.He made it clear that…Continue Reading

Advertisement

Our Catholic Faith (Section B of print edition)

Catholic Replies

Editor’s Note: This series on the Bible is from the book Catholicism & Scripture. Please feel free to use the series for high schoolers or adults. We will continue to welcome your questions for the column as well. Send the questions to the addresses listed below. Special Course On Catholicism And Scripture (Chapter 4) Abram, whose name God would later…Continue Reading

Moral Incoherence Becomes Deafening

By FR. KEVIN M. CUSICK If the conflicting sound waves of truth and lies were measurable, the hearing of the general public would be declared in danger. The Catholic faith always builds on reason, grace uplifting and sanctifying nature. But when the unnatural is substituted for the natural, as with the Flemish bishops, the German Synodal Way, and the recent…Continue Reading

On Being Faithful In A Few Things . . . Before Being Ruler Over Many Things

By MSGR. CHARLES POPE (Editor’s Note: Msgr. Charles Pope posted this commentary on September 17 and it is reprinted here with permission.) + + I. Analysis of the Sinner — In the opening lines of the Gospel, Jesus describes a sinful steward.Delusion (of the sinner) — Jesus said to His disciples, “A rich man had a steward. . . .”Notice…Continue Reading

How Long, O Lord?

By FR. ROBERT ALTIER Twenty-Seventh Sunday In Ordinary Time Readings:Hab. 1:2-3, 2:2-42 Tim. 1:6-8, 13-14Luke 17:5-10 The first reading today, from the Prophet Habakkuk, is very apropos for our time. As it was in his day, so too it is in ours: people crying to God for help, but nothing seems to happen; people crying out “violence,” but God does…Continue Reading

Catholic Replies

Q. I don’t use rosary beads to say the rosary since I pray in the car or while doing gardening or housework. Is it okay to pray the rosary daily with my fingers? Also, I have seen pictures of St. Joseph with lilies, and I have been told that is the way he was chosen to be the husband of…Continue Reading

Catholic Heroes… St. Augustine Of Canterbury

By DEB PIROCH Apostle, Benedictine monk, first archbishop of Canterbury, and the founder of the First Eccliastical See in England, St. Augustine of Canterbury is not a name remembered by many Americans. But as England buries Queen Elizabeth II this week, we hear much of Her Majesty’s Christian faith. Without St. Augustine’s work, would Christianity in England exist at all…Continue Reading

Catholic Heroes . . . St. Bridget

By DEB PIROCH “Oh my friends, I love my sheep so tenderly that were it possible I would die many other times for each one of them that same death I suffered for the redemption of all” — Words attributed to Christ, Revelations of St. Bridget. + + In 1999, Pope St. John Paul II issued a moto proprio, making…Continue Reading

Advertisement(2)