Free speech is under attack from the U.S. Supreme Court while the Arizona Court of Appeals got it right. The Janus v. AFSCME 5-4 decision from the Supreme Court on June 27, 2018, was not about being forced to support a particular viewpoint. Union members could already opt out of paying for a union’s political activities since Abood v. Detroit Bd. Of Ed in 1977. Rather the case was about enabling “free riders” that will share the benefits of a union (better pay, working conditions, health care, and pensions) without paying to destroy union funding.
The court pointed out that the union itself “speaks” on issues of substantial public concern such as advocating for wage and tax increases, cutting spending “to Wall Street financial institutions,” reforms to Illinois’ pension and tax systems (such as closing “corporate tax loopholes,” “expanding the base of the state sales tax,” and “allowing an income tax that is adjusted in accordance with ability to pay.”)
In addition, the court said the union might talk about climate change, the Confederacy, sexual orientation and gender identity, evolution, and minority religions. So while the court says that such speech “‘occupies the highest rung of the hierarchy of First Amendment values’” and merits “‘special protection.’” they then stifled the speech of the union.
The California case, NIFLA v. Becerra, decided June 26, 2018, was also a 5-4 decision. That case was not about forcing any organization to advertise for abortion. The FACT Act required clinics that serve pregnant women to provide notices that California provides free or low-cost comprehensive services and lists a phone number. It’s a consumer protection bill to ensure that citizens have comprehensive and accurate information when making medical decisions and that those with less money have access to all services. Unlicensed clinics must notify women that they are not licensed and do not have licensed medical personnel. This is a perfectly reasonable consumer protection provision. But the court violated free speech principles and censored the state.
The Brush & Nib v. City of Phoenix, which the Arizona Court of Appeals issued its ruling on June 7, 2018, is not about free speech or religious rights, but about discrimination and intolerance. The U.S. Supreme Court said in its June 4, 2018, decision in Masterpiece Cake v. Colorado Civil Rights Commission:
“Our society has come to the recognition that gay persons and gay couples cannot be treated as social outcasts or as inferior in dignity and worth. …it is a general rule that such objections do not allow business owners and other actors in the economy and in society to deny protected persons equal access to goods and services under a neutral and generally applicable public accommodations law.“
That decision makes it clear that Brush & Nib was decided correctly.
The main purpose of the ordinance is to prohibit discrimination therefore regulating conduct not speech. The First Amendment allows people to believe anything they want but it does not allow people to do anything they want. Some religions believe it’s a good idea to beat children with coat hangers or deny children medical care or allow geriatric men to marry 13-year-old girls or kill a female who “dishonors” the family. Courts have said no to all of this conduct.
When operating a business, it has to follow the law. The business owners can say they don’t agree with the law and post statements about their personal religious beliefs. What the business cannot do is to use their religion as a shield to discriminate against potential customers. The case was ultimately not about a wedding invitation any more than Masterpiece was about a cake, or the lunch counter sit ins in the 1960s were about getting a sandwich.
Alliance Defending Freedom cannot win Brush & Nib, but will only waste taxpayer dollars on the court battle while filling their own fundraising coffers.
Real religious freedom does not force others to adopt one belief or constrict behaviors according to one dogma. Real freedom of speech has to be balanced with other fundamental rights such as equality and fairness and even safety – you can’t yell fire in a crowded theater. Don’t be fooled by false prophets seeking profits.
— Dianne Post is an international human rights attorney with 37 years of experience, on the board of State NOW and ERA Task Force Arizona.
The views expressed in guest commentaries are those of the author and are not the views of the Arizona Capitol Times.