Religious freedom ensures that every person has the right to explore life’s deepest questions and to live out their religious convictions in public life. Free speech similarly ensures that all have the liberty to express their views and pursue truth without fear of government punishment. Free exercise of religion and free speech are durable rights that do not turn on cultural popularity or political power; these freedoms enable us to coexist peacefully with each other despite deep differences. Yet these freedoms are being sorely tested today by government efforts to suppress the rights of creative professionals—painters, filmmakers, printers, and many others—who in recent years found themselves out of step with novel government orthodoxies on marriage and sexuality.
The United States Supreme Court considered these foundational freedoms in three critical cases in its last term: Masterpiece Cakeshop, Ltd. v. Colorado Civil Rights Commission (“Masterpiece I”);1 National Institute of Family & Life Advocates v. Becerra;2 and Janus v. American Federation of State, County, and Municipal Employees, Council 31. Masterpiece considered whether the government may lawfully force an artist’s hand to create art against the artist’s conscience. NIFLA asked whether the government may compel religious prolife advocates—pregnancy centers, no less—to promote other groups’ abortion services. And Janus asked whether the government may compel a non-union public employee to subsidize his agency’s union when that employee opposed many of the union’s positions. The objecting speakers in each case were protected, building on a legacy of First Amendment precedents.
This article reviews the genesis of Masterpiece and its application of well-established religious freedom principles to protect artist Jack Phillips’ free exercise rights. It then discusses how the strict proscriptions against compelled speech affirmed in NIFLA and Janus should work in tandem with religious freedom to protect creative professionals’ rights of conscience. Finally, the article applies those decisions in creative professional cases currently in litigation including Washington v. Arlene’s Flowers. Whether reviewing recent decisions by the United States Supreme Court or decades old precedent, the article concludes that everyone’s freedom is respected when the government protects religious freedom and free speech and assiduously avoids compelling anyone to speak a message or celebrate an event that violates their core convictions.
Kristen K. Waggoner,
Cath. U. L. Rev.
Available at: https://scholarship.law.edu/lawreview/vol68/iss4/11