Imagine a state law prohibited businesses from discriminating against anyone based on their political beliefs. Now imagine a state government agency fined a newspaper for refusing to print an op-ed opposing gun control. Imagine the same agency fined a Muslim-owned a screen printing business because the company refused an order for t-shirts portraying an image of the Prophet Mohammed.
I doubt any judge in the entire country would uphold either fine, nor should they. Such punitive government actions violate two core principles of our nation’s founding: that the government has no right to prohibit any person from practicing their religion or exercising their freedom of speech.
But you don’t have to imagine governments targeting the free exercise of religion in precisely this way. Some states consider laws banning discrimination a license to do exactly that, but against Christians. They rely on such laws as authority to force people of faith to express messages that run contrary to their sincerely-held beliefs. The past couple years have seen a flurry of such state-led attacks and those states have fought all the way to the Supreme Court in an effort to continue steamrolling religious beliefs. Disturbingly enough, they have found plenty of judges to go along with them.
Many know about Jack Phillips, owner of Masterpiece Cake Shop, and his years-long struggle to avoid creating art for a same-sex marriage celebration in violation of his Christian beliefs. A number of judges were more than happy to oblige the state of Colorado in its discriminatory attempt to force Phillips to relay its favored message. Fortunately, the Supreme Court rebuked the State of Colorado last year.
Nonetheless, with the help of lower-court judges, other states continue their attack on conscience rights. The state of Washington is still pursuing claims against Christian florist Barronelle Stutzman for declining to provide flowers to a same-sex wedding.
Oregon even continues to pursue a case against Aaron and Melissa Klein, owners of the bakery Sweet Cakes by Melissa, based on the same basic facts as the Masterpiece Cake Shop case: the Kleins simply declined to create a custom-designed wedding cake for a same-sex ceremony based on their conviction that marriage is a covenant between a man and a woman. Oregon assessed a fine of $135,000 against the Kleins personally, forced Sweet Cakes by Melissa out of business entirely, and even ordered the Klein couple not to discuss their beliefs. Although an Oregon court overturned that “gag order,” the court saw no problem with allowing the fine to stand. The Kleins have one last resort: the United States Supreme Court.
Some might ask why this matters to me, the attorney general of Texas. After all, the voters of Texas would never stand for their elected officials placing such a burden on rights of conscience. But once lost, constitutional rights are seldom returned. If the State of Oregon can force the Kleins to express messages contrary to their religious beliefs, there is little to stop a future Congress from imposing similar laws on everyone, including my fellow Texans.
George Orwell once observed that “if liberty means anything at all, it means the right to tell people what they do not want to hear.” Some may find sincerely-held religious beliefs difficult to hear. However, if free speech and religious liberty are to endure, cases like that of the Kleins simply must be repudiated. Building on the victory in Masterpiece Cake Shop v. Colorado Civil Rights Commission, the court must stand up for our constitutional protections. Otherwise, scenarios like those I asked you to imagine above may just become a reality.
Ken Paxton is Attorney General of Texas.
