For years, the court refused cases that could bring some potential clarity on this point – cases involving businesses seeking not to service same-sex weddings. The one case it did take, Masterpiece Cakeshop v. Colorado Civil Rights Commission, left the most important questions undecided.
Recently, however, the court added a religious liberty case to next year’s docket. This case concerns a website design company wishing not to provide its services for same-sex weddings. It signals that the court might now begin to give some judicial definition to the thorny questions that remain shrouded in Obergefell’s shadow.
In particular, the court will tackle how religious liberty relates to free speech. Taking up this issue may seem odd. The Constitution already contains religious provisions to address claims such as this one, namely, the Free Exercise and Establishment Clauses. Why turn, then, to the Free Speech Clause, which says nothing specifically about religion?
The court turned to this question because litigants have been doing so. Litigants have done so because the courts have afforded much greater protection to free speech claims than to free exercise ones. While recent decisions show some signs of closing that gap, overall, free speech claims do much better in court than claims involving religious liberty.
At the same time, whether the litigants communicate views about the mid-terms or the veracity of the Bible, speech is speech. Moreover, cases such as the one the court just took focus on what exactly speech is.
That statement, again, may seem silly, the ravings of someone who has lost common sense. Speech concerns the spoken word, uttered to communicate. We may add the written word here, too, just to be careful and fill in our definition. All other actions a person takes are not speech.
Yet, the Supreme Court long ago said that the Free Speech Clause protected more than speaking or writing words. Persons communicate opinions through a variety of gestures. We wear bands or ribbons, fly flags or burn them, all to communicate political, social, and religious opinions.
Where, then, do we draw the line between “expressive action” and simple actions? This point has haunted other cases the court has refused to take, such as whether taking photographs at a wedding expressed approval of that wedding. In Masterpiece Cakeshop, the court passed on deciding whether baking a cake for a wedding also celebrated that ceremony.
The court hopefully will begin to address some, if not all, of these issues when they hear the new case.
We as a political community need to do so as well. We need to make sure we draw clear lines between religious liberty and the rights of gay persons; otherwise, these rights will be at stake. We must adequately show how far religious claims can extend to free speech; otherwise, how we read the Constitution will be at stake. And we must establish a clear distinction between speech and action, lest we turn every deed into expression and, consequently, every action into a political or social statement.
The Supreme Court should seek to clarify these issues. Nothing less than liberty is at stake.
Adam Carrington is an associate professor of politics at Hillsdale College.