We often hear the Constitution called a “living document.” Many think that it is like a tree constantly growing new shoots, while old branches die and fall away. Limbs once strong enough to support a man, might now break off and drop him on his head.
For more than seven decades, we have been subjected to a Supreme Court that is constantly finding new “constitutional rights.” These are based not on the explicit words of the Constitution, but on “penumbras” and “emanations” supposedly derived from other constitutional protections.
We have also seen, over the course of decades, that each new “right” always tends to trump the rights that are actually named in the Constitution.
The newest “right” found in the Constitution was discovered three years ago last week. Justice Anthony Kennedy authored Obergefell v. Hodges which created a constitutional right to marry.
This time, however, he included strong wording in his opinion, meant to prevent this new right from trumping the First Amendment. He promised, “…that religions, and those who adhere to religious doctrines, may continue to advocate with the utmost, sincere conviction that, by divine precepts, same-sex marriage should not be condoned” (Obergefell, at 27).
In the years since, many have watched with alarm as this new right sought to devour the right of free speech, free exercise of religion, property rights, freedom of assembly and more. I, myself, have often wondered what Justice Kennedy thought of these developments. Is that what he intended all along? Or was his opinion being exploited contrary to his intentions?
In his final session at the Supreme Court, Kennedy got the chance to answer those questions. The Court agreed to hear no less than three separate cases involving First Amendment protections. Masterpiece Cakeshop v. Colorado Civil Rights Commission, NIFLA v. Becerra, and Janus v. AFSCME.
The first decision, Masterpiece, came down on June 4. The case involved a shopkeeper’s right to free speech and free exercise of his faith in declining to join in celebrating a wedding. Kennedy Himself wrote the opinion.
What puzzled many was that the Court declined to address the free speech at issue (although Justice Thomas wrote a concurrence that laid it out). The 7-2 majority narrowed its ruling to take on only the free exercise of religion. On this basis, Justice Kennedy’s opinion strongly defended the free exercise of region and took the state of Colorado to task for its obvious hostility to the baker’s religion.
Then, exactly three weeks later, the same court applied these findings to a florist in Washington. Barronelle Stutzman’s conviction under Washington State’s Anti-Discrimination Act was vacated and sent back to the Washington Supreme Court.
The very next day, June 26, SCOTUS handed down its second First Amendment decision. NIFLA v. Becerra, like Masterpiece, involved both the free exercise of religion and free speech. But this time, the Court ruled only on free speech and set aside the free exercise argument that California’s pro-life pregnancy centers have been discriminated against because the state did not favor their viewpoint.
The case centers on California’s “Reproductive FACT Act.” This law required licensed pro-life pregnancy centers to advertise free or low-cost abortions offered through the state. It also forces non-medical pregnancy centers to place large, wordy notices on all advertisements.
The National Institute of Family and Life Advocates (NIFLA) sued to halt its enforcement. They argued that the law unconstitutionally compels speech that is opposed to the very mission of these pregnancy centers.
Similar laws in Texas, New York, Maryland and Illinois have been struck down since they do not stand up to the “strict scrutiny” required for government to impinge on free speech. The “strict scrutiny” standard means that the government must prove that its speech restrictions (1) meet a compelling government interest and (2) that they do so in the least restrictive way possible.
However, the Ninth Circuit Court of Appeals applied a different standard. It admitted that the FACT Act coerced the speech of pro-life pregnancy centers and that it did not meet the strict scrutiny standard. But then, it attempted to carve out a new category of “professional speech” that can be impinged with only “intermediate scrutiny.”
The Supreme Court rejected this notion of “professional speech.” It remanded the case back to California’s Supreme Court with instructions to apply the standard of strict scrutiny. In so doing, it determined that NIFLA was “likely to succeed on the merits of their claim that the FACT Act violates the First Amendment” (NIFLA v. Becerra, at 20).
Just as Thomas wrote a concurring opinion in Masterpiece which highlighted the passed-over free speech argument, Kennedy wrote a concurring opinion in NIFLA that highlighted the passed-over free exercise argument.
Kennedy’s opinion is less than two pages long, but it’s worth quoting. He first underscores the Court’s commitment to keep the government from discriminating against religion. He wrote, “this law is a paradigmatic example of the serious threat presented when government seeks to impose its own message in the place of individual speech, thought, and expression” (NIFLA v. Becerra, Kennedy concurrence, at 1).
Next, he scolds the California Legislature for its obvious discrimination against pro-life people and viewpoints. “The California Legislature included in its official history the congratulatory statement that the Act was part of California’s legacy of ‘forward thinking,’” said Kennedy, “but it is not forward thinking to force individuals to be an instrument for fostering public adherence to an ideological point of view they find unacceptable.”
He then goes on to define true progress in four sentences.
First, “It is forward thinking to begin by reading the First Amendment as ratified in 1791.”
Second, it is forward thinking “to understand the history of authoritarian government as the Founders then knew it.”
Third, it is forward thinking “to confirm that history since then shows how relentless authoritarian regimes are in their attempts to stifle free speech.”
Fourth, it is forward thinking “to carry those lessons onward as we seek to preserve and teach the necessity of freedom of speech for the generations to come” (concurrance, at 2).
For Kennedy, if the Constitution is a “living document” it lives like a person, not like a tree. Even when it is old, it is the same that it was in 1791. It is not a corpse that can be mutilated at will. Its living words, written 227 years ago, still have power to rise up and assert their original meaning.
The following day, June 27, SCOTUS completed the trifecta of pro-First Amendment decisions. It handed down a ruling in Janus v. AFSCME that took the unusual step of overturning a 41-year-old precedent.
When government labor unions were still in their infancy in 1977, the Supreme Court ruled that it was in the government’s interest to force its employees to pay the union even if they didn’t want to join it, nor agree with its positions (Abood v. Detroit Board of Ed.).
Justice Samuel Alito penned a majority opinion that overturned Abood and reaffirmed that the First Amendment right of free association includes also the right not to associate.
In fact, these three rulings taken together can be thought of as underscoring the right not to be compelled to worship at the government’s altar (Masterpiece), to speak the government’s message (NIFLA), or to join the government’s associations (Janus).
As Justice Robert Jackson put it in 1943, “If there is any fixed star in our constitutional constellation, it is that no official, high or petty, can prescribe what shall be orthodox in politics, nationalism, or religion, or other matters of opinion or force citizens to confess by word or act their faith therein.” (West Virginia Board of Ed. V. Barnette, 1943).
A living Constitution is always moving toward that fixed star.
Jonathan Lange is an LCMS pastor in Evanston and Kemmerer and serves the Wyoming Pastors Network. He can be reached at [email protected] Follow his blog at OnlyHuman-JL.blogspot.com.