But sometimes lonely stands look better over time. When two Jehovah’s Witness sisters refused to say the Pledge of Allegiance in their public school classroom during World War II, they were decidedly unpopular. But their courage resulted in one of the most remarkable statements of constitutional principle in American history, from the Supreme Court’s 1943 ruling in West Virginia State Board of Education v. Barnette: “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, religion or other matters of opinion, or force citizens to confess by word or act their faith therein.”
In a nation as polarized as our own, the definition of “outsiders” can vary wildly, depending on where they live. In one community, conservative Christians may dominate, and be tempted to censor speech they dislike, to “protect children” or defend the “common good.” In other communities, those same Christians will find their own speech under fire as “hateful” or “discriminatory.”
The consequence is an odd legal reality, an artifact of our divided times. Christians and drag queens — in different jurisdictions and in different courts — are both protecting the First Amendment from the culture wars. They’re both reaffirming a foundational principle of American liberal democracy: that even voices on the margins enjoy the same civil liberties as the powerful and the popular.
In his majority opinion, Justice Gorsuch stated the case well. “In this case,” he wrote, “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.” The state does not possess such power. It must not possess such power. Otherwise the culture wars will consume the Constitution, and even our most basic rights to speak or not speak will depend on whether we can gain and keep political control. That is not the vision of American pluralism, and it is not the vision that will sustain a united, diverse American republic.
Justice Sotomayor is misstating the case. It was *stipulated* that the business would serve LGBT customers. It just wouldn't create expressive works that convey a message it finds objectionable, regardless of the identity of the customer. https://t.co/BJjZYRRWvB
— David French (@DavidAFrench) June 30, 2023