Hurt Feelings, Conscience, and Freedom – Part 1

Rick Plasterer on May 26, 2023

The 303 Creative vs. Elenis case, which will presumably be announced near the end of June, is one of the most crucial, perhaps the most crucial case to be decided by the Supreme Court in the war between sexual liberation and religious liberty. It is being analyzed by the court as a free speech case, although freedom of religion and conscience really lie behind it, and was reviewed by this writer in two articles late last year, one before, and one after oral arguments before the Supreme Court.

As noted particularly in the second article, the free speech claim against requiring the proprietor of 303 Creative, Lori Smith, to provide web design for same-sex weddings is strong. Providing web design for same-sex weddings is now required by common court interpretation of the Colorado Anti-Discrimination Act (CADA). But free speech for what is obviously expressive behavior seemed to be strongly defended by a majority of justices at the December 5 oral arguments.

As the secular and religious left has attacked the Judeo-Christian tradition in recent years, both in law and in society, with antidiscrimination laws and (where possible) speech restrictions, the Supreme Court has defended both, although free speech is much stronger in current jurisprudence. While the Left has condemned this as favoritism to the Right, it is actually simply the straightforward application of the law, as was noted more than a year ago by Mark Rienzi of the Becket Fund for Religious Liberty, and allows Americans with sharply different opinions to live together.

Using Social Stigma Claims to Overcome Free Speech

Faced with a court intent on protecting freedom of religion and speech, the Left has turned to the claim that civil rights law, and behind it, the Fourteenth Amendment, mandates pro-active government measures to remove social stigma. This is really a very blatant effort to gain what social conservatives have complained about for years, the claim of a right not to be offended. It was recently discussed by well-known researcher in sexual behavior and the family, Mark Regnerus, of the Austin Institute for the Study of Family and Culture in a Public Discourse article.

The challenge to defenders of free speech in the wider society is daunting. The majority of Americans now accept both homosexuality and same-sex marriage, and as Regnerus notes, “All of the major American medical, sociological, and psychological professional organizations endorse LGBTQ claims, including gender medicine for minors, an industry now buttressed by over 400 clinics.” When one considers that ten or twenty years ago, many of these very intelligent people would never have thought of endorsing the sexual mutilation of minors, and their professional associations (if not the majority of practitioners) advance it today as “science,” the extent of cultural conquest is staggering. To be against LGBT claims from the standpoint of common sense (and certainly religious belief) is to be against science. The American Psychological Association presented an amicus brief in support of the State of Colorado’s claims of a right to compel speech in requiring Lori Smith use her artistic talents to provide same-sex wedding web design.

Regnerus pointed out that this situation proves Chief Justice John Roberts was correct in his doubt, expressed in his dissent from the same-sex marriage decision, Obergefell vs. Hodges (2015), that the promise in the decision of free speech protection for opponents of same-sex marriage would be honored. Roberts said the majority decision “graciously suggests that religious believers may continue to ‘advocate’ and ‘teach’ their views of marriage.” However, the APA claims that social stigma adversely affects the health of LGBT identifying persons. It proposes denying free speech to Lori Smith by requiring compelled speech. When this bridgehead is established, speech against homosexuality (or silence in place of approval), could become illegal in many situations, as is the case in Canada and other Western countries. Essentially, hurt feelings will have become a gaping exception to the First Amendment, and the Left can argue for any violation of freedom in the name of “health.”

But social sciences involve considerably more subjectivity in their development than the hard sciences. Regnerus observes that in the lead-up to Obergefell, LGBT advocates emphasized “‘no differences’ (especially between the children of gay and straight parents),” but now the emphasis is to show disparities between the general population and the LGBT identifying population and attribute any inferiorities in the latter to emotional distress resulting from stigma. Nevertheless, worse LGBT life outcomes seem to persist even where society has been LGBT supportive for many years (as in the Netherlands) and continues to be supportive. This writer would add that, particularly in regard to the commonly used threat of suicide in despair, a thirty year study in Sweden showed that people who underwent sexual anatomy altering surgery were 19 times more likely to commit suicide than the general population

Also important, Regnerus said, is that some research proposes that younger LGBT cohorts seem to be more sensitive to perceived stigmatizing than the older LGBT population. Given the large “snowflake” population in colleges and universities, this is not surprising. As a researcher critical of the consequences of the sexual revolution, Regnerus said he experiences much day-to-day stigma, but has learned to deal with it. The LGBT identifying population can and does deal with it as well. But pro-LGBT stigma research tends to deny “agency on the part of persons. It esteems collective action while implying personal passivity and an externalized locus of control.”  

Answering Stigma Mitigation as Justification for Denying Constitutional Rights

Regnerus believes that the current conservative court is more likely to rely on legal precedent than social science research in deciding the 303 Creative case (although he does present research to show the superiority of monogamous marriage). This is aided by the fact that both parties involved in the case acknowledge that Lori Smith’s web design is “pure speech.” Among the many amicus briefs offered to the Supreme Court, likely the best at answering the claim of stigma mitigation against the constitutional right to free speech was offered by Robert George, professor of law at Princeton University.

George compellingly shows that principles established by the Supreme Court recognize the constitutional right to free speech cannot be curtailed in the interest of hurt feelings, however strong the hurt is. He pointed to the Snyder vs. Phelps case (2011), in which Westboro Baptist Church picketed the funeral of a soldier killed in an accident in Iraq. That established a Supreme Court ruling that “there is no degree of offense so severe as to constitute a legally cognizable ‘dignitary harm’ against the group of people offended. Speech is protected even when it is so ‘particularly hurtful’ to a distinct group that ‘emotional distress … fails to capture fully’ the strength of the emotions it stokes among listeners.”

He quoted from the famous dissent of Associate Justice Oliver Wendell Holmes in United States vs. Schwimmer (1929) (majority decision now overruled) to say that the “proudest boast of our free speech jurisprudence . . . [is] that we protect the freedom to express ‘the thought that we hate.’” Also “a State may lawfully promote its favored message ‘by persuasion and example,’ but the argument that ‘[t]he Government has an interest in preventing speech expressing ideas that offend . . . strikes at the heart of the First Amendment.’”

Decisions at mid-twentieth century established the strong free speech jurisprudence that we know today. In West Virginia State Board of Education vs. Barnette (1943, which concerned the refusal of Jehovah’s Witness children to salute the flag), Justice Robert Jackson, writing for the majority, said that “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.”

Later in Cohen vs. California (1971, concerning a Vietnam draft protester who wore a jacket containing an obscenity in the hall of a California courthouse) the U.S. Supreme Court declared “the freestanding right to avoid offense or what one regards as insult is not and never has been legally cognizable. The First Amendment protects even the most offensive speech ‘in the hope that use of such freedom will ultimately produce a more capable citizenry and more perfect polity.’”

Against the common claim of “dignitary harm” LGBT advocates advance against conscience refusals (and in this case, free speech) George observed that there is also a “dignitary harm” in compelling Lori Smith to express ideas she does not believe. Although it is indeed a free speech case, “the rights to free speech and the free exercise of religion are distinct and thus receive separate protection under the First Amendment, they are often intertwined.” He quoted a now famous article in the Yale Law Review by Sherif Gergis, “Nervous Victors, Illiberal Measures,” (written after Obergefell) to say that there is a right to “express the conviction that outsiders are … not just wrong, but deluded about matters of cosmic importance around which they have ordered their lives—even damnably wrong.”

But although the claim to “dignitary harm” might be newly raised with LGBT liberation, the claim that there cannot be fundamental differences in society about ultimate things is old. Quoting Jean Jacques Rosseau’s “The Social Contract,” (1762), George observed that “America is stalked by an ancient fear: The creeping suspicion that ‘[i]t is impossible to live with those whom we regard as damned.’”

Other prominent organizations with an interest in this vital case also submitted their briefs and are worth noting in assessing where things stand. Some of the more noteworthy briefs and concluding comments will be given in a subsequent article.

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