I am often asked if the culture wars will cool off now that the U.S. Supreme Court discovered a constitutional right to same-sex marriage in Obergefell v. Hodges. My emphatic answer is "no."
For same-sex marriage advocates, Obergefell was just a sign post along the road to their ultimate goal: legally coerced acceptance and celebration of same-sex marriage as a moral good, equivalent in all respects to one-man, one-woman marriage.
And for those unwilling to "get with the program," their solution is loss of livelihood and social ostracism imposed through law, as we've already seen in numerous cases across the country. Do we live in America anymore?
I personally witnessed the "be compelled or be silenced" mindset of the far-left at a court hearingjust a few days after the Obergefell decision came down.
I presented argument on behalf of Jack Phillips, a faithful Christian who owns Masterpiece Cakeshop in a Denver, Colorado, suburb. Like many cake artists and individuals in other artistic professions, Jack objects to artistically designing and creating cakes that celebrate things that violate his beliefs. He's not alone. Even Walmart has invoked this right recently, refusing to create cakes bearing the Confederate battle flag because the discount store chain deems it offensive.
Jack derives his beliefs from the Bible, and so he objects to designing and creating cakes celebrating, among other things, any marital union that is not between one man and one woman. He declined to create a wedding cake celebrating a same-sex marriage, and the State of Colorado and the ACLU, which represents the couple, sued him under the pretense that he violated a state law barring sexual orientation discrimination.
One of the issues in Jack's case is whether the edible works of art he creates are protected First Amendment expression. You may or may not agree that these cakes are entitled to First Amendment protection (although they clearly are under legal precedent that broadly protects artistic expression), but what you need to know is that for same-sex marriage advocates like the ACLU, it does not matter. To them, if you own a business and object to same-sex marriage, you have no First Amendment rights, and therefore the government can compel you to express messages or create expression that offends your most deeply held beliefs.
One of the judges in Jack's case fleshed this out at oral argument. He asked the ACLU attorney the following question to explore the limits of her argument: "Suppose a fine art painter advertises to the public that he or she will make oil paintings on commission, and then a patron contacts the artist and requests that the artist paint a commissioned picture that celebrates gay marriages, and the artist refuses, saying, 'I won't do that. I don't believe that. That would infringe upon my First Amendment rights.' Does the artist violate [Colorado's public accommodations law] in those circumstances?"
The point of the judge's question was to ask about a form of artistic expression that no one would dispute that the First Amendment fully protects-painters and their paintings -- to see if even they must be compelled under the ACLU's theory.
The ACLU's answer to the judge? An unequivocal yes.
That answer is chilling. If same-sex marriage advocates do not hesitate at the prospect of compelling artists to use their mind, energy, and talents to create expression that offends their beliefs, no one's conscience is safe.
In their dystopian world, the law can and should force anyone in communicative professions -- professional marketers, publicists, lobbyists, speech writers, film makers, newspapers, singers, painters, actors, and a host of others-to communicate messages and create expression that conflict with their most deeply held beliefs.
The exception, of course, is if you are in ideological lockstep with the ACLU and other same-sex marriage proponents. Those with "acceptable" views won't have to worry. Involuntary servitude of the mind is reserved only for those who resist the new orthodoxy.
Consider the three Denver bakeries that recently turned away a Christian customer who wanted them to produce cakes with several Bible verses and symbols that reflected his religious opposition to same-sex marriage. (Despite reports to the contrary, he did not ask the cake artists to write "God hates fags" on the cakes -- read the probable cause determinations for yourself).
The customer filed "creed" discrimination complaints against the bakeries under the same law the state is using to prosecute Jack. The state dismissed the complaints, despite clear creed discrimination, which under Colorado law covers discrimination based on the "the beliefs or teachings of a particular religion, church, denomination or sect."
For the record, my law firm supports the right of those three bakeries to decline to create cakes that offend their beliefs, including those the Christian customer requested. We just want the state to respect Jack's right to do the same.
As for the ACLU? Despite its opposition to Jack's freedoms, it issued a press release cheering the bakeries' decisions and celebrating their right to decline to create expression that conflicts with their beliefs.
If this post-Obergefell legal strategy works, our country will pay a dear price. The First Amendment will be a shadow of its former self, protecting only those with "acceptable" views and permitting the government to present dissidents with a terrible choice: coerced agreement or forced silence.
That may seem like a good thing while your views are in favor, but prevailing opinions change often, and sometimes rapidly. And nothing will stop the new majority from using the legal precedents approving the coercion of same-sex marriage dissidents against new non-conformists.
So if you are inclined to celebrate the compulsion and punishment of those who disagree with same-sex marriage, understand that what you are really celebrating is the loss of your own First Amendment freedoms as well.
Jeremy Tedesco is director of the Freedom of Conscience Initiative for Alliance Defending Freedom and argued on behalf of Masterpiece Cakeshop at the Colorado Court of Appeals on July 7.