Neither Kavanaugh nor constitutional originalism are scary
Liberals can't have their cake and eat it too in Supreme Court case
As the Supreme Court readies its historic decision on whether Colorado cake shop owner Jack Phillips can refuse to make a special cake for a same-sex marriage due to religious objections, New York may have given the justices multiple examples of why it must answer this and other controversies not on religious but free speech grounds. A Manhattan judge ruled recently that a Donald Trump supporter wearing a "Make America Great Again" hat could be constitutionally thrown out of a bar for his political views. Other incidents in New York show the often biased treatment given speech based on its content.
Justice David Cohen grilled Greg Piatek on whether he could claim a "spiritual" element to his MAGA hat and, after rejecting a religious-based claim, declared it a "petty slight" that is unprotected. (Of course, only people unfamiliar with being tossed out of establishments because of political beliefs can dismiss such acts as "petty." I am fairly certain Justice Cohen does not have that problem in Manhattan. Conservatives, however, do.) At New York's Fordham University, a group of conservative students were thrown out of Rodrigue's Coffee House for wearing MAGA hats. The shop's manager insisted the hats violated its "safe space" policy, as if being conservative is now a de facto threat to other students.
Recently, conservative speaker Milo Yiannopoulos was forced to leave a bar in New York City after a crowd - which reportedly included Annie Shields, an editor at the Nation and a co-chair of the Bronx Democratic Socialists of America, as well as other journalists - chanted, "Nazi scum get out." The bar did not kick out Yiannopoulos itself but, according to Justice Cohen's ruling, it could have. Indeed, journalists like Vice reporter Allie Conti mocked Yiannopoulos as "scared to death" and described being verbally abused and chased out as a "non-event."
An administrator at State University of New York at Oswego reprimanded a student for making other students feel "uncomfortable" by raising liberal intolerance of free speech at an "open mic" event last month. Nicole Miller was called out under an "unofficial policy," thereby confirming the very point of her remarks. Trisha DeWolf, the SUNY Alcohol and Other Drugs Program coordinator, contacted Miller and said her discussion of free speech left other students uncomfortable. DeWolf wrote in an email that "a few of our students were deeply hurt by some of your remarks (their words, not mine). Moving forward, there will be written guidelines for performers, which I hate to have to do."
In other words, the school reserves the right to refuse access to open mics based on the content of the speech. It is not clear if SUNY is going to bar students from raising racial intolerance or other discomforts, or simply leave it to administrators like DeWolf to keep speech in what she views as the comfort zone. Liberals appear to want to preserve the right to deny service to conservatives on the basis of political sensibilities while preventing conservatives from denying service based on religious sensibilities, as in the Masterpiece Cakeshop case
As I have previously written, both sides are mistaken. It is not a distinction drawn along religious freedom lines. It is all about free speech. If the Supreme Court were to rule against the cake shop owner, it would mean that no one would be able to refuse service based on religious objections, even though Phillips said he would sell any available cake to any customer and only objected to preparing a special cake. That decision would also apply to a Jewish bakery asked to make a "Mein Kampf" cake or an African American bakery asked to celebrate a skinhead wedding. Would they also be denied the right to refuse?
If the Supreme Court carves out a narrow bona fide religious exemption, would atheists and agnostics then have no right to refuse offensive cakes? The ridiculousness of such a rule was made plain by Justice Cohen: Piatek was forced to frame his claim in "spiritual" terms and stressed that he had worn the hat to the 9/11 Memorial as a "spiritual tribute to the victims of 9/11" and that is was part of his "spiritual belief."
Yet, Justice Cohen virtually mocked the claim as some "creed of one." Of course, the ridiculous thing was forcing a bona fide exercise of free speech, which was harming no one, and forcing it to be translated into a religious objection. The failure to recognize all of these instances as protected free speech leads to absurd, biased results. The same advocates celebrating the right to toss out people wearing MAGA hats presumably would celebrate the right to refuse to make a MAGA cake. However, it means that a bar could toss out someone wearing a Black Lives Matter hat or an American Civil Liberties Union shirt.
There is no easy solution for a society that respects free speech while protecting equality. Anti-discrimination laws have been on a collision course with free speech for decades. It is time to reestablish a bright line that protects free expression, while also protecting religious and political viewpoints. It would mean that a cake shop or other business could refuse to write things deemed offensive, whether it is profanity or political statements or religious values, which would leave the rest to the public and the market to sort out good and bad businesses.
Phillips may find himself labeled discriminatory by not just same-sex couples but also a wider array of customers offended by his actions. Free speech will correct bad speech, particularly with the speed of social media and the internet. What you cannot do is protect the right to throw out Trump supporters but not the right to throw out Democratic socialists. Embracing free speech in these controversies will not mean that people can be turned away due to their religion, race, gender or sexual orientation. It would only apply to expressive acts where a business owner is asked to prepare something that is deemed as offensive. The Constitution would still protect against refusal to serve based not on the act of free speech but on the class or identity of the customer.
Indeed, cities like New York could legislatively bar the denial of service based on political identity so long as it protects all viewpoints. However, it is unlikely that the New York City council will move to protect all speech equally, including symbols that many find offensive like white nationalist symbols or groups deemed anti-semitic or racist. What the recent New York cases show is that liberals cannot have their cake and eat it too in decisions like Masterpiece Cakeshop. You either protect free speech for everyone or give the government the power to determine what speech is permitted and what is proscribed, from coffee shops to cake shops.