Government

The Religious Right Is Leading Us Off Valuable First Amendment Rails

Some litigants are allowed to play by different rules when it comes to the First Amendment.

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Extending First Amendment protection against compelling citizens to endorse ideas they find objectionable appears to depend primarily upon whether the idea or objection falls within Christian doctrine.

Almost a year ago, I pointed out that modern religious liberty doctrine is grossly unbalanced in a way that favors religion, the Christian religion in particular, at the great expense of everyone else’s free conscience protection. Unfortunately, in the time since I wrote that piece the unbalance has rapidly increased. Indeed, the last year has made it painfully obvious that the single greatest factor for determining the result in any free conscience objection case is whether the objecting party is doing so because of their Christian faith. Moreover, if your free conscience objection against government compelling citizens to pay for or otherwise endorse ideas they find objectionable is based on an opposition to government compelling an overtly Christian idea, your free conscience objection is guaranteed to lose.

This current state of affairs in free conscience liberty doctrine meant it was rather easy for me to successfully predict the result in The American Legion v. American Humanist Association case, otherwise known as the Bladensburg Cross case. All one has to do in order to become a free conscience case prophet is rely on the premise that a majority of this current United States Supreme Court will never side with a party making a free conscience objection to any government assessment that forces all citizens to pay for or endorse overtly Christian ideas, monuments, organizations or expressions. In the Bladensburg cross case for example, two members on the Supreme Court, Justices Neil Gorsuch and Clarence Thomas wrote separately in a concurrence declaring that the non-Christian parties did not even possess standing for relief. Why? Well, according to Justices Gorsuch and Thomas, the mere individual objection to the government forcing citizens to finance, maintain, and therefore otherwise promote a giant Christian cross is insufficient to sustain an injury-in-fact under the First Amendment. 

I tried to make clear at the time, the conclusion reached by Justice Gorsuch’s and Thomas’ concurrence that no injury existed in the Bladensburg case flew in the face of the Court’s First Amendment jurisprudence established just the year prior in Janus v. Am. Fed’n of State, Cnty,, & Mun. Emps., Council, and was rather notably joined by both Justices Gorsuch and Thomas. Per my piece:

In the Janus case….a citizen was objecting to the government (in the form of public sector unions), forcibly extracting money to pay for the promulgation of political speech the citizen disagreed with. In that case, the Court focused not on the mere offense of the individual with the particular beliefs being expressed, but rather on the fact that the government was forcibly extracting money from the citizen to pay for promulgation of the beliefs. Had the Court focused on the issue of forced extraction in the Bladensburg case, it would undoubtedly have reached the same conclusion as it did in Janus, which, of course is why it ignored the issue.

To be clear, I wholeheartedly agree with the decision in Janus, such forced extraction by the government to convey beliefs, either political or religious, is unlawful to any fair reading of the First Amendment. However, what makes the Janus decision even more remarkable when compared to the Bladensburg case is that Janus was decided based on original principles of religious freedom. Yet, just a year later, and faced with a case of citizens objecting to the power of the state to extract money in order to promulgate religious speech/beliefs — you know the kind of objection that original religious freedom was based upon — the Court refuses to apply the original religious freedom analysis it applied in Janus. Instead, the Court engages in a transparently biased selective historical analysis to reach an absurdly obvious preferred conclusion that favors religion over non-religion.

In further retrospect, the Janus opinion appears to be unique in that its set of facts dealing with compelled support of public sector unions is the only set of facts that has been granted the same type of free conscience protections one only sees in First Amendment cases involving Christian free conscience objections. Outside of the narrow facts in Janus and ideas that only Christians object to, the concept of free conscience liberty against government coercion is routinely disregarded. In point of fact, in cases such as Bladensburg where the free conscience objection is being made by parties who are secular or non-religious against government forcing them to endorse overtly Christian ideas, you will find open judicial scorn and ridicule at even the concept of extending First Amendment protection.

I might sound biased or paranoid to you but a recent decision by the Eighth Circuit currently being touted by members of the Christian right lends a lot of credibility to my assessment of the current state of religiously selective affairs when it comes to free conscience liberty. To put this decision in proper context it must be pointed out that just last year, a three-judge panel of the very same Eight Circuit held that forcing all objecting non-religious people — who explicitly reject a belief in any deity — to use currency that conveys upon them a belief and trust in God in order to participate in commerce does not violate the First Amendment. In fact, that same Eight Circuit stated there was no semblance of government coercion over the non-religious party’s beliefs whatsoever.

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Now, my fellow Americans, compare that conclusion to a free conscience case decided last week where the same Eighth Circuit found that a Christian party’s beliefs were violated by a legislatively established state condition on commerce, drawn upon a judicially recognized legislative power upheld by layers and decades of precedent, that mandates one cannot discriminate against homosexuals in commerce. Make the comparison between these two free conscience cases objectively and you will find there is clearly only one consistent principle at play here, and it is not a healthy respect for the free conscience objections of all individuals.

Tyler Broker’s work has been published in the Gonzaga Law Review, the Albany Law Review, and is forthcoming in the University of Memphis Law Review. Feel free to email him or follow him on Twitter to discuss his column.

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