When the Truth Is Unconstitutional by Linda Greenhouse

[elleng]

'The Masterpiece Cakeshop case, with its free speech claim by the baker who doesn’t want to bake, received enormous attention, both before and after this week’s Supreme Court argument. And no wonder: The baker’s position that no law can force him to lend his “art” to a use to which he objects — celebrating a same-sex wedding — would, if accepted, invite a flood of “I would prefer not to” opt-outs from anti-discrimination laws meant to apply to all.

Another free speech case on the Supreme Court’s calendar with equally profound implications hasn’t yet caught the public’s eye, even though it is likely to be the only abortion-related case on the court’s docket this term. The justices accepted the case, National Institute of Family and Life Advocates v. Becerra three weeks ago, and will hear it this winter.

Just as Masterpiece Cakeshop is about far more than bakers and their creative expression, this case transcends the subject of abortion. The First Amendment question it presents is doctrinally complex but can fairly be boiled down to this: when is it unconstitutional to require an entity that deals with the public to tell its customers the truth?

At issue are requirements that a 2015 California law imposes on “crisis pregnancy centers,” described in the legislative record as places that “pose as full-service women’s health clinics, but aim to discourage and prevent women from seeking abortions” through “intentionally deceptive advertising and counseling practices.”'>>>

https://www.nytimes.com/2017/12/07/opinion/abortion-supreme-court-speech-california.html?

[PoliticAverse]

1. You don't have a "free speech" right to defraud. n/t

[Angry Dragon]

2. why not if it is part of your religion??

[PoliticAverse]

3. It may be de facto, but it is not yet de jure. n/t

[Solly Mack]

4. K&R

[PJMcK]

5. A question about the Cakeshop Case

The bakers claim the right to pick and choose their customers based on their personal beliefs and First Amendment rights.

But the bakery is a state-licensed business and must comply with various state and federal laws including taxes, FICA, building safety, ADA requirements, etc.

How is the baker's choice to discriminate against homosexuals any different than the old days of the South where "colored people" were denied services in public businesses? Those practices were struck down.

The idea that they can choose to hide behind their religious beliefs to discriminate is absurd.

Here's an afterthought: An entrepreneur might see an opportunity in that Colorado community to open a bake shop and market its openness to all cake-lovers. Put the bigots out of business.

[elleng]

6. Good questions, and good idea.

Recall Heart of Atlanta Motel case?

Heart of Atlanta Motel Inc. v. United States, 379 U.S. 241 (1964)[1][2] was a landmark United States Supreme Court case holding that the U.S. Congress could use the power granted to it by the Constitution's Commerce Clause to force private businesses to abide by the Civil Rights Act of 1964.

Complications, of course, as the 'status' of marrying homosexuals arguably not covered under the Civil Rights Act.

[PoliticAverse]

7. Why are the Amish able to opt out of paying into Social Security?

https://faq.ssa.gov/link/portal/34011/34019/Article/3821/Are-members-of-religious-groups-exempt-from-paying-Social-Security-taxes

[Jim Lane]

8. Because Congress exempted them.

When Social Security was extended to agricultural workers, many Amish refused to participate, on religious grounds. IIRC at least one Amish farmer went to prison.

Many in Congress, however, sympathized with the Amish and similar groups. I assume the reasoning was along the lines of: These people have been around a long time, and we know that this isn't some phony religious belief being asserted to get out of paying taxes; the purpose of Social Security is to prevent total destitution among the beneficiaries, and the Amish community accomplishes that goal through their internal structures; therefore we'll exempt them. The specific requirements in your SSA link derive from the statute (passed in 1965). A bunch of libertarians who claim to worship Ayn Rand wouldn't be able to qualify for the exemption.

The statutory exemption, however, applied only to the self-employed. An Amish man who employed a few other Amish refused to pay FICA taxes on their wages. His case went up to the Supreme Court, which ruled that imposing participation on the Amish was not an unconstitutional infringement on religious freedom. United States v. Lee, 455 U.S. 252 (1982).

Incidentally, the principle enunciated in Lee was directly applicable to the Hobby Lobby case about birth control. Based on that precedent, Hobby Lobby should have lost, so the majority opinion had to go through contortions to try to explain it away. Justice Ginsburg pointed that out in her Hobby Lobby dissent.

[PoliticAverse]

9. An extensive, excellent explanation. I believe the Amish case was wrong, because...

Congress' exemption to the Amish explicitly goes against the "Congress shall make no law respecting an establishment of religion" provision of the Constitution.

Regarding Ginsberg, who in regards to forcing the senate to vote on the Garland nomination said...

“If the Senate is not acting, what can be done about it?” Ginsburg asked rhetorically. “Even if you could conceive of a testing lawsuit, what would the response be? ‘Well, you want us to vote, so we’ll vote no.’ 

if the Court forces the bakers to make a wedding cake they don't want to could the baker's response be "Well, you want us to bake a cake, so we'll make a crappy one."? And if so, would the only remedy be to sue for a service not provided?

[Jim Lane]

10. There's a tension between the Establishment Clause and the Free Exercise Clause.

Here are the two easy, simplistic solutions to free-exercise claims, like those by the Amish, Hobby Lobby, and the homophobe baker:

1. Total deference to the Free Exercise Clause. Anyone claiming a religious belief gets an exemption. Regulations and taxation will completely collapse as people concoct religious reasons for ignoring laws they dislike.

2. Total indifference to the Free Exercise Clause. A bunch of Amish farmers will get thrown in jail, to no real public purpose. (Let them keep earning money and they'll take care of their elderly parents and disabled neighbors, as Social Security is supposed to do. Throw the farmers in jail and those people will either starve to death or become a burden on the public.) The next cell over will house Native Americans who use peyote in their traditional religious rituals.

So the law rejects both of these simplistic solutions because either one leads to bad consequences. Instead we have:

3. Do some picking and choosing, weighing a lot of factors like the sincerity of the religious belief and the social consequences of noncompliance, create an Establishment Clause violation (or at least problem) because members of certain religious groups are granted privileges not available to atheists, agnostics, and other religions, and generally leave no one completely satisfied.

None of these is perfect. I think the third is the best of a bad lot. It leaves room for arguments about line-drawing, which is why we get a 5-4 Supreme Court decision in Hobby Lobby, but it's still better than either of the absolute approaches.

H. L. Mencken wrote that "there is always a well-known solution to every human problem — neat, plausible, and wrong." In this instance there are two different solutions that are neat, plausible, and wrong. The closest approach to a right solution is far from neat.

[Jim Lane]

11. Let me clarify about "the Amish case"

The Supreme Court in Lee held that there was no First Amendment right for the Amish to refuse to pay Social Security taxes. If you want to be sure to avert Establishment Clause violations, that's the correct decision.

I assume that what you think is wrong is the statutory change by which Congress exempted the Amish.

I don't know if there's ever been a court case challenging the exemption on Establishment Clause grounds.

[PoliticAverse]

12. Yes, I think Congress explicitly exempting the Amish was wrong...

as it explicitly constituted "respecting an establishment of religion".