For one side, recent Supreme Court cases have variously involved discrimination against gays, access to information on abortion, and adequate “financial support” for public sector unions. For the majority, though, these cases were all about one thing: freedom of conscience.
The plaintiffs after whom the cases were named, Mark Janus, the Masterpiece Cake Shop, and the National Institute of Family and Life Advocates, weren’t seeking special treatment or extraordinary rights. They weren’t even seeking the right to do anything. All they wanted was the freedom not to be compelled into speech to which they objected morally. They were begging the state not to intrude into their conscience.
Happily, conscience won in all three cases.
Janus v. AFSCME tested whether government-employee unions could force nonunion workers in union shops to pay partial union dues, known as “agency fees.” Mark Janus is a state employee in Illinois who is not a member of the American Federation of State, County and Municipal Employees. The state nevertheless has taken money out of his paycheck every month and given it to the union.
This had been deemed okay under old precedent on the grounds that Janus only paid about 80 percent of union dues, and didn’t have to cover the 20 percent of his union’s spending that went to blatant politicking. But this was always a bad joke, because there is no separating the union’s collective bargaining from its “politics.”
The employers in this case were the taxpayers of Illinois. Every dollar the union demanded in pay was a dollar of taxes imposed, a dollar of state spending cut elsewhere, or a dollar deeper into Illinois’s fiscal abyss.
Labor unions’ employment demands are also often politically loaded. Consider public school teachers or librarians, and their demands. Chicago’s teachers’ unions formerly demanded and secured a school day of less than six hours. Should every school teacher be forced to lobby for that with money from his pay packet?
Consider demands over what taxpayer-funded health insurance should cover. Abortion? Gender reassignment surgery? As the American Left often aptly points out, the folks claiming to be non-political or non-ideological are usually just implementing elite ideology through political means.
Illinois’ government was forcing Janus, as a state employee, to subsidize union lobbying with which he disagreed, and which he saw as a dangerous force in his nearly bankrupt state.
The First Amendment “includes both the right to speak freely and the right to refrain from speaking at all,” Justice Samuel Alito wrote in the opinion, citing ample precedent.
“Forcing free and independent individuals to endorse ideas they find objectionable is always demeaning,” Alito wrote. “That includes compelling a person to subsidize the speech of other private speakers.”
The high court’s liberal justices do not see things this way. “The First Amendment was meant for better things,” Justice Elena Kagan griped, lamenting the court’s “wield[ing] the First Amendment in such an aggressive way,” which is an odd and highly skewed way of saying “enforcing” it. She then cited the National Institute of Family and Life Advocates v. Becerra, decided Tuesday, also by the court’s four conservatives joined by swing-voter Anthony Kennedy.
In that case, California was trying to force crisis pregnancy centers to advertise abortion. This California law was a typical salvo from the Left’s culture war arsenal, using government to impose progressive morality on everyone else. It was also another attempt to crush conscience by compelling speech, forcing people who dedicate their lives to saving women and babies from abortion to advertise abortion.
Masterpiece Cakeshop v. Colorado Civil Rights Commission had the same issue. It was not about whether a baker could deny selling cakes to gay people. It was about whether the state could force a baker to craft a specialty item celebrating a ceremony he saw as a false imitation of the sacred institution of marriage.
Culture warriors worried about anti-gay discrimination, about pregnant women not knowing all their options, or, as Kagan put it, that “public employee unions will lose a secure source of financial support.”
None of these interests comes close to equaling the gravity of the conscience rights demanded by the plaintiffs and guaranteed since this nation’s founding.
“If there is any fixed star in our constitutional constellation,” Justice Robert Jackson, a Franklin Roosevelt appointee wrote in a 1943 case protecting students from being forced to recite the pledge of allegiance, “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.”
Alito cited this line along with Thomas Jefferson’s words: “[T]o compel a man to furnish contributions of money for the propagation of opinions which he disbelieves and abhor[s] is sinful and tyrannical.”
This is an ancient idea, promulgated by a range of great thinkers St. Augustine to Alexander Solzhenitsyn. While citizenship or the social contract may impose duties on a man, and while infringements on one’s liberty must sometimes be tolerated for the common good, there nevertheless must be an inviolable sphere where the state cannot reach.
St. Thomas More lost his head because he would not say something he knew to be evil. Martyrs have given their lives throughout the centuries rather than let a lie come into the world through them.
Our Supreme Court this month disappointed liberals enraged by the diminished political clout for taxpayer-funded unions (as well as their own), a political loss for the abortion lobby, and what they saw as a license to discriminate. But anyone who is genuinely “liberal” ought to recognize the higher good of protecting freedom of conscience.
