If you follow Robert P. George in social media, you probably know several things about this legal scholar.
(1) He is a political philosopher and professor of jurisprudence at Princeton University.
(2) George is a doctrinally conservative Roman Catholic.
(3) He is a skilled Americana musician (think folk, gospel and bluegrass) who plays the banjo and a 12-fret acoustic guitar (I’m a big fan of the latter).
(4) In the public square, he is relentlessly irenic, seeking ways to view issues through the lens of those with whom he disagrees. This approach has been demonstrated during years of joyful and informative pro-tolerance dialogues with his close friend Cornel West, a liberal’s liberal known for decades of provocative classroom work at Princeton, Harvard and Union Seminary.
From a GetReligion point of view, it’s also important that — based at Princeton — George lives right on the edge of what could be called the Archdiocese of The New York Times and he pays close attention to mainstream news coverage of religion and public life.
This is why George played a key role in this week’s “Crossroads” podcast (click here to tune that in), which was a follow-up to my recent post with this headline: “After 303 Creative: Can readers find Twitter voices (hello David French) that help us think?”
After the latest wave of U.S. Supreme Court decisions, George posted a Mirror of Justice commentary in which he noted that Times editors seemed remarkable unaware of the actual contents of the majority opinions. The headline on the Gray Lady’s initial 303 Creative story was, in GetReligion terms, a classic: “Web Designer Wins Right to Turn Away Gay People.”
The problem was that Justice Neil Gorsuch — author of the court’s landmark Bostock decision (.pdf here) backing trans rights — said the opposite of that in his 303 Creative majority opinion (.pdf here). Lawyers on both sides of the case agreed that this was a First Amendment case. Thus, George wrote:
Under the ruling (which concerned a devout Christian website designer), an orthodox Jewish calligrapher, doing business with the general public, could not, for example, refuse to do business with a "Jews for Jesus" messianic Jewish person who asked for a card for his friend that simply said "Happy Birthday Shmuley!" He couldn't say, in other words, "I don't agree with your religion, or your interpretation of Judaism, and therefore will not do business with you. Get out of my shop! I'm turning you away."
What he could do, however, despite civil rights prohibitions of discrimination based on religion, is refuse the customer's request that he make a poster that says, "Jesus Christ is the messiah long promised to the Jewish people. He is the Son of the living God; the one and only way to salvation. Embrace him, Jewish brethren, or damnation awaits you!" Similarly, he could refuse to make a ketubah (written marriage contract) for a Jews for Jesus Christian-Jewish wedding purporting to be licit under Jewish religious law.
One more byte from that George post:
To repeat, the ruling forbids governments from forcing people to participate in the crafting of messages that contradict their conscientious convictions (like the calligrapher's orthodox Jewish religious beliefs). It is an anti-compelled speech case. Its roots are in the Supreme Court's 1943 decision in West Virginia v. Barnette striking down a law compelling Jehovah's Witnesses school children to salute the flag and say the Pledge of Allegiance in violation of their religious convictions. (The Witnesses felt that the ceremony amounted to bowing down before a graven image in defiance of the biblical prohibition of idol worship.)
Now, it’s interesting that New York Times editors appear to have noted that their headline — “Web Designer Wins Right to Turn Away Gay People” — was, well, kind of wrong.
That’s why, if you click a URL to the current version of that story you will see this revised double-decker headline:
Supreme Court Backs Web Designer Opposed to Same-Sex Marriage
The justices settled a question left open in 2018: whether businesses open to the public and engaged in expression may refuse to serve customers based on religious convictions.
However, read the second deck of that headline again and ask: Did SCOTUS waffle on the “refuse to serve” issue?
What’s the journalism problem here? There’s a clue in the overture to that Times story. Read this carefully, especially the last line:
The Supreme Court sided … with a web designer in Colorado who said she had a First Amendment right to refuse to design wedding websites for same-sex couples despite a state law that forbids discrimination against gay people.
Justice Neil M. Gorsuch, writing for the majority in a 6-3 vote, said that the First Amendment protected the designer, Lorie Smith, from being compelled to express views she opposed.
“A hundred years ago, Ms. Smith might have furnished her services using pen and paper,” he wrote. “Those services are no less protected speech today because they are conveyed with a ‘voice that resonates farther than it could from any soapbox.’”
The case, though framed as a clash between free speech and gay rights, was the latest in a series of decisions in favor of religious people and groups, notably conservative Christians.
Was this strictly a “conservative” decision that would primarily benefit “conservative Christians” or “religious people” in general?
Actually, it’s pretty easy to look at this decision in a mirror and see how it could protect the First Amendment rights of all kinds of “liberal” writers, artitists, editors, photographers, etc., or the rights of “conservative” believers in other traditions.
Thus, Gorsuch noted:
… Ms. Smith will gladly conduct business with those having protected characteristics so long as the custom graphics and websites she is asked to create do not violate her beliefs. Ms. Smith stresses that she does not create expressions that defy any of her beliefs for any customer, whether that involves encouraging violence, demeaning another person, or promoting views inconsistent with her religious commitments. The First Amendment’s protections belong to all, not just to speakers whose motives the government finds worthy. In this case, Colorado seeks to force an individual to speak in ways that align with its views but defy her conscience about a matter of major significance. … Consistent with the First Amendment, the Nation’s answer is tolerance, not coercion. The First Amendment envisions the United States as a rich and complex place where all persons are free to think and speak as they wish, not as the government demands. Colorado cannot deny that promise consistent with the First Amendment.
Readers should also note that, to the credit of Times editors, their report on 303 Creative did include the following — noting Gorsuch’s efforts to show the broader impact of this ruling:
He cited the example of a Muslim movie director being forced to “make a film with a Zionist message,” or an atheist being forced to accept a commission to create a mural “celebrating evangelical zeal.”
“Taken seriously, that principle would allow the government to force all manner of artists, speechwriters and others whose services involve speech to speak what they do not believe on pain of penalty,” Justice Gorsuch wrote. “Countless other creative professionals, too, could be forced to choose between remaining silent, producing speech that violates their beliefs, or speaking their minds and incurring sanctions for doing so.”
In my post earlier this week, I included a similar “mirror image” parable that I have used at GetReligion several times during the past decade or so, primarily in posts about media coverage of a SCOTUS decision — Masterpiece Cakeshop (.pdf here) — that loomed over the 303 Creative arguments in Colorado:
Here’s the latest tweaked version of that church-state parable — with details crafted to fit the Religious Freedom Restoration Act, which passed on a 97-3 vote in the U.S. Senate in 1993:
… Let's say that there is a businessman in Colorado who runs a video-production company. He is an openly gay Episcopalian and, at the heart of his faith (and the faith articulated by his church) is a sincere belief that homosexuality is a gift of God and a natural part of God's good creation. This business owner has long served a wide variety of clients, including a nearby Pentecostal church that is predominantly African-American.
Then, one day, the leaders of this church ask him to shoot and edit a video about a major event — the upcoming regional conference of the Parents and Friends of Ex-Gays & Gays. He declines, saying this would violate everything he stands for as a liberal Christian. He notes that they have dozens of other video options in their city and, while he has willingly served them in the past, it is his sincere belief that it would be wrong to do so in this specific case.
Readers! Do you believe the Times team would defend the First Amendment rights of this gay Colorado artist when he refused to create a video with ex-gay content that clearly violated his personal beliefs and, let me stress, the teachings of his liberal church?
What think ye? Why do some, not all, journalists have trouble looking at these kinds of cases in a mirror and seeing how they would apply to Americans other than “conservative Christians”? Maybe we need more American conservatives to force liberal creative-class professionals to create right-wing content?
Enjoy the podcast and, please, pass it along to others.
FIRST IMAGE: Uncredited illustration with a feature — “The Little Old Lady in the Mirror” — at the Jewish Mom website.