December 7, 2017

THE ESTABLISHMENT CLAUSE IS NOT THE SPEECH CLAUSE:

The Cake Is Just the Beginning : Justice Gorsuch's radical First Amendment theory could sabotage civil rights law. (Mark Joseph Stern, 12/07/17, Slate)

Gorsuch's startling proposal arrived midway through arguments, as Colorado Solicitor General Frederick Yarger defended the state's civil rights commission. Yarger was attempting to explain why Colorado's treatment of Jack Phillips, the baker, did not run afoul of his rights to free speech or free exercise of religion. Gorsuch jumped in with "a quick question about the remedy" that Colorado imposed on Phillips after finding that he had violated state nondiscrimination law.

Gorsuch, with a look of grave concern, said:

As I understand it, Colorado ordered Mr. Phillips to provide comprehensive training to his staff, and it didn't order him to attend a class of the government's own creation or anything like that, but to provide comprehensive staff training.

Why isn't that compelled speech and possibly in violation of his free-exercise rights? Because presumably he has to tell his staff, including his family members, that his Christian beliefs are discriminatory.

Yarger, who seemed befuddled by the question, responded honestly, telling Gorsuch that "a training requirement is a common remedy that is used in many civil rights cases." The justice, however, pressed on.

"But this isn't attending your training, Mr. Yarger," Gorsuch said. "This order was ordering him to provide training and presumably compelling him to speak, therefore, and to speak in ways that maybe offend his religion and certainly compel him to speak."

By this point, Yarger looked genuinely alarmed. And rightfully so: Gorsuch had essentially declared that a law which requires managers to teach their employees about the requirements of nondiscrimination law violates the First Amendment.

How could requiring teaching that religious beliefs are wrong not violate free exercise and Establishment?

Posted by at December 7, 2017 10:10 AM

  

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