The court, the First Amendment, and Island life


Three current Supreme Court cases that the justices are just now considering could have an impact on Vineyarders and visitors to the Island. They all have to do with the First Amendment, which, among other things, encompasses free expression, a free press, and freedom of religion. One involves public accommodations. This requires a private enterprise that opens its doors to the public, like a restaurant, tavern, or bakery, to serve all potential customers despite their race, religion, ethnicity, sex, or age.

A second poses the question of whether the First Amendment allows us to refrain from saying something we choose not to say. In other words, can the government force us to say something we would rather not utter?

And finally, can the government prohibit speech in specific areas, like polling places, even if a person is not promoting a particular candidate? More than 25 years ago, the court ruled that states can prohibit the distribution of campaign-related literature within 100 feet of a polling place, but what about non-campaign-related messages inside a polling place? That is the question the justices must answer.

The first case, Masterpiece Cakeshop v. Colorado Civil Rights Commission, involves a clash between the First Amendment’s free expression guarantees and the Fourteenth’s equal protection of the laws provision. Jack Phillips, a baker, claims that his bakery goods are extensions of his artistic expression, that they are not merely baked goods, but representations of fine art. He serves everyone who comes in the door, with one exception: He will not make a wedding cake for a same-sex marriage. Thus, when Charlie Craig and David Mullins asked for a wedding cake, Phillips responded that he would make them anything but that.

As a corollary, Mr. Phillips also claimed that he was a born-again evangelical Christian, and that forcing him to make the cake for their wedding would have violated his religious principles. The two men, however, relied on the equal protection clause under the Fourteenth Amendment and Colorado law that Mr. Phillips had a duty to make their cake because otherwise he was discriminating on the basis of sexual orientation.

The case poses a fascinating set of issues, but mainly the clash of the First and Fourteenth Amendments. The court has decided that sex is a protected category, but it has never confirmed that it also included sexual orientation. Moreover, because Mr. Phillips has also noted his faith, religion complicates the case even further.

The case involving words we do not want to say is National Institute of Family & Life Advocates v. Becerra: the institute is an antiabortion family planning clinic. Under California law, all such institutions must inform their clients whether they provide medical services. Lawmakers determined that many nonprofit organizations opposing abortion, some associated with Christian evangelical groups, presented themselves as reproductive health clinics, and accordingly provided pregnant women with misinformation about their options.

The National Institute of Family & Life Advocates is such a group: It cautions against abortion, and advocates that a woman keep her child or seek an adoption. Its leaders claim that its employees cannot be forced to say they do not provide medical services, even if they do not. Thus, the First Amendment is triggered in a rare negative way. Its employees object to having the government force them to say something they would prefer not to say.

All cases involving family planning and abortion rights immediately raise a far more important question, namely whether the court could take on a case to investigate a much wider issue, namely to overrule Roe v. Wade (1973), which established a woman’s right to an abortion under certain conditions. This case may not be the one to lead to that conclusion. However, it is notable that the Mississippi legislature has just outlawed abortions for women who are past 15 weeks of their pregnancy. Perhaps, if challenged, the Mississippi law may be the one when the court reconsiders the Roe decision.

Justice Anthony Kennedy, the moderate swing justice on the court, has strongly supported abortion rights for women in the early stages of pregnancy. At 82 years old, he may well be retired by the time the Mississippi case reaches the Supreme Court, at which time there may well be a replacement who opposes to a woman’s right to an abortion.

Finally, Minnesota Voters Alliance v. Mansky raises the issue that affects few states, including Massachusetts. But it raises questions about the limits of free political speech in the 21st century. Here, Andrew Cilek challenged a Minnesota law that forbids all political speech in whatever form, including all passive speech, inside polling places.

Mr. Cilek wore a T shirt when he wanted to vote in 2010 that had a picture on it of a Gadsden flag T shirt (a picture of a rattlesnake with the phrase, “Don’t Tread on Me”), a symbol associated with the Tea Party, and a lapel button that said, “Please I.D. Me.” Election judges prohibited him from voting, twice, but when they finally allowed him to, a poll watcher took down his name and address. He sued. And now the justices will determine whether he can wear these items when he, along with everyone else who goes to their polls, walks into the polls to vote.

These three cases are just three of some 75 the court is dealing with this term, which began last October. We should know the outcome of all of them by the end of June when the term ends. They are well worth watching because of their potential impact on our lives.


Jack Fruchtman, a seasonal Aquinnah resident, teaches constitutional law and politics and civil rights and civil liberties at Maryland’s Towson University.