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One Supreme Court case will have a critical impact on tolerance, free speech, and freedom of belief

010318 Ellis Blog Post photo
A court case in Oregon regarding a baker who refused to bake a cake for a same-sex wedding is very similar to the one currently making its way through the Supreme Court: Masterpiece Cakeshop v. Colorado Civil Rights Commission. (AP Photo/Brennan Linsley)

The Oregon Court of Appeals decided unanimously this week to uphold a $135,000 fine against the owners of a local cake shop whose owners declined to use their artistic skills and talents to create a custom cake for a same-sex wedding.

Sound familiar? This is a similar case to Masterpiece Cakeshop v. Colorado Civil Rights Commission that was argued before the Supreme Court in early December. In that case, the baker Jack Phillips argues the government cannot compel speech that is against an individual’s sincerely held belief.

In a nation whose people, politics, and especially religious beliefs are sharply divided, the Masterpiece decision will have a critical impact on the preservation of tolerance, free speech, and freedom of belief.

In the Oregon case, bakery owners Aaron and Melissa Klein were forced to pay “emotional distress” damages under current Oregon law, which essentially means that if a customer feels offended on a basis protected by anti-discrimination law, they can successfully sue for damages.

What is most alarming about the Oregon court’s opinion is the rejection of the Klein’s argument that their custom designs rise to the level of artistic expression that is a clear message intended by the author. Rather, the court irrationally held that it is the burden of the speaker to show that his or her message is perceived correctly by others.

“Although we accept that the Kleins imbue each wedding cake with their own aesthetic choices, they have made no showing that other people will necessarily experience any wedding cake that the Kleins create predominately as ‘expression’ rather than as food,” the opinion held.

This is the court’s sleight of hand and an end-run around the First Amendment. Free speech and freedom of expression are fundamental rights held by the speaker. The Constitution does not protect a hearer or perceiver of speech from offense, misperception, or — as the lesbian couple alleged in the Oregon case — emotional and mental distress. The First Amendment protects the speaker, not the hearer according to his or her subjective perception.

Meaning and expression have always been and must be inherently vested with the author speaker, otherwise meaning becomes literally meaningless. If meaning is left open to the subjective whim of the hearer/perceiver, communication itself cannot happen.

You may disagree with the content of this opinion piece, but the words and phrases that I, as the author, choose and intend to convey are not open for subjective determination. Any mistake of communication, whether it be through a poor word choice on my part or a poor understanding on your part, does not negate the original intent of what I actually meant or intended.

This kind of rationale from a court of law that is focused on the offended perceiver is the hallmark of activism. Courts are vested with the sole legitimate responsibility of interpreting meaning objectively and consistently applying the meaning of the law to a given case as fairly and unbiased as possible by human judicial officers. This is also why we have higher levels of appeals with wider panels of jurists. Not so that parties hope they get a majority court sympathetic to their political position for an activist win.

We have forgotten why authorial intent matters to the protection of our fundamental freedoms and to constitutional analysis. Originalism is the doctrine of interpretation of any communication, including our Constitution as a written document with authors that expressed their meaning in written form.

Any communication has an author — the person (or persons) who wrote or spoke or otherwise express a message. The author chooses the particular medium and method of conveying their message. In the classic form of written speech, the author houses particular words and phrases to communicate a specific meaning to the reader. Similarly, a custom design from an artist (whether on a cake or traditional canvas) conveys the author’s intent for the message.

A perceiver may ultimately disagree with the author’s message or have a different opinion or viewpoint, but the perceiver is not free to substitute his or her own meaning into the message and then claim what the message intends.

The most common form of miscommunication happens between two individuals (the author and the perceiver) when the perceiver misunderstands, incorrectly perceives, or deliberately substitutes his or her own intent for the intent of the author’s.

Consider how ridiculous communication would become if you could not say anything to your loved one without giving them the power to interpret it however they want, regardless of what you meant through your own choice of messaging. If your loved one can subjectively choose to interpret the words “I love you” as “I hate you,” then what is the point of attempting communication?

Communication inherently requires an understanding of the author’s intended meaning, and that meaning must logically remain with the author.

What happened in the Oregon case, and what I pray will not happen in the Masterpiece opinion, is the judicial branch substituting its own judgment on what the government and individuals should do, rather than exercising judicial restraint and limiting their opinion to what the government and individuals may do.

Certainly, a baker may decline to use his or her artistic skills and talents to express a message that violates his or her sincerely held belief or conscience, per our rule of law. This is not an agenda-based outcome, but an objective constitutional rules-based outcome.

This lack of principle is the core of the constitutional crisis in America today and why we see a varied opinion from the courts based on the political considerations from individual justices. Oregon is progressive and liberal, and its courts hold thusly. This should not happen with either a Republican or Democratic agenda. True conservatism is all about conserving the rule of law and the understanding that such rule must be nonpartisan, objective, and equally applied to every instance, regardless of the political agenda or outcome.

The Constitution does not, in fact, pick winners and losers. It provides a specific set of limited powers to the government to operate. Regardless of one’s political opinion, the government cannot compel an individual author to express a message that is against his or her sincerely held belief. This is why we have the First Amendment that enumerates these protections.

Our judicial branch is supposed to be the weakest because it cannot constitutionally reach or opine or weigh in on political questions and considerations. Oregon and every other progressive court is doing the exact opposite, reaching far beyond the judicial branch’s limited scope of constitutional authority.

It needs to stop.

Jenna Ellis (@jennaellisorg) is a contributor to the Washington Examiner's Beltway Confidential blog. She is an attorney and professor of constitutional law at Colorado Christian University, fellow at the Centennial Institute, radio show host in Denver, Colo., and the author of The Legal Basis for a Moral Constitution.

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