When the state's police power forces a man affirmatively to engage in some behavior that violates his religious convictions, the burden should be on the state to justify its imposition.

Part I

Imagine the following. You are a devout Christian and you believe in the sanctity of the written word of the Bible. The Bible says quite clearly that homosexual behavior is an abomination. People who engage in such behavior are deserving of punishment. As an American, you will leave the punishment of such acts to government and to G-d, though you realize the government is no longer even attempting to moderate prurient behavior. You have enough to do to be a good Christian, husband, father and patriot.

You invest in a little business in Arlington County, Virginia, that will duplicate videos and perform other digital video services. On your website and posted in your store, you indicate that as a devout Christian you will not accept any material that violates your religious beliefs. You do not say you are going to refuse a customer because of who he is, be he of a given race, sex, national origin, ethnic affiliation or even a sinner in your eyes. You simply make it clear that you will not deal with material that violates your religious principles.

In walks an avid homosexual activist. You remain perfectly willing to provide her the services you would provide any other customer. In fact you don’t know she is an activist for what you consider un-Christian-like behavior, and quite frankly you don’t care. But you soon learn the activist wants you to reproduce a video, the name and content of which advocate the rights of homosexuals and the legitimacy of that behavior. You politely refuse. Your religious belief as a devout Christian, which maintains the sanctity of the written Bible, including the explicit prohibitions against and condemnations of homosexuality, does not permit it.

The homosexual activist knows the tools of governmental coercion are on her side and intends to use them to ill effect. She turns to the Arlington County Human Rights Commission. After “a careful review,” the Commission determines that the Christian’s refusal was in violation of Arlington County law and orders him to either produce the video or pay the homosexual activist to get it reproduced elsewhere.

The prevailing view among “conservative” libertarian law professors is that while this might be bad policy to force this good Christian to provide services in furtherance of a cause he believes evil, it is nonetheless constitutionally permissible. In other words, there is a strong professional legal view that the government can indeed force this Christian into a compromising position. How?

We begin here in this Part I a fuller exposition of this draconian use of governmental power to deny freedom of religion, speech, and association and explicate how it is possible that any reasonable mind could come to the conclusion that Arlington County has done anything other than breach the most fundamental of freedoms this country has to offer. In the meantime, feel free to read about this case in the blogosphere and in the local media here.

The Historical-Legal Context

We wish to deal with this case in plain language. The problem of course is that the United States Supreme Court has made a mockery of the constitution and Congress has gone along. The result is that no discussion of the abuses of law and logic that turn a devout Christian into a civil or even criminal defendant in his refusal to deal with what his religion determines to be sinful is simple and straightforward. We have endeavored to make it at least understandable to a layman with no education, experience or interest in the intricacies of this jurisprudential quagmire, while still retaining the full brunt of the idiocy at work. The reader will have to determine how successfully this essay achieves that end.

The first thing we would ask is how does the local government, through the Arlington County Human Rights Commission – a government agency, have the right or lawful authority to interfere with this man’s business in the first instance? The theme presented in this essay as an answer is one of a Supreme Court out of control, usurping our most basic freedoms under the guise of protecting “liberty” and the granting of “rights” to engage in the basest of behaviors. The sleight-of-hand at work here is that the Court takes our G-d-given freedoms and responsibilities and hands back liberties and rights to be deviant and anti-American. Thus, the court takes the greatest liberty of life and the blessings that come with the potential of life from the unborn fetus in order to protect a woman’s right to kill her unborn child. Similarly, and appropriate to our discussion here, the county seeks to protect the homosexual’s right to promote debauchery and moral abominations by taking from us our right to religious freedom.

Back to the Christian in the Homosexual’s Den

How and why this occurs philosophically and politically is a different discussion, which has been discussed in material at Sane Works for US. How this has occurred in the context of constitutional law is the point of this essay. To begin this inquiry properly, we must head backward to a time when men were men and no one in their right mind would have thought of harassing this upstanding and good Christian. At common law, meaning the old English law as the young revolutionary America received it, certain providers of public accommodations, notably innkeepers, common carriers, and smiths, were required to serve anyone who presented themselves as long as there wasn’t good cause to refuse him. (Hurley v. Irish-American Gay, Lesbian & Bisexual Group of Boston, 515 U.S. 557 (1995) at 571.) The patent explanation for this rule was to promote commerce which required travel. The rationale as it has been explained by both Sir William Blackstone and Justice Joseph Story, respectively, two of the greatest expositors of English common law and the common law of the young republic as derived from the former, is that the privilege of operating an inn or common carrier for the traveling public is a privilege granted by the legal authority of the state and is therefore subject to what would otherwise be an unwelcome and unenforceable restriction of the liberty of private property and association. In the common law, “public accommodation” was necessarily reserved for these very specific circumstances. (See the discussion and sources for “public accommodation” at footnote 17 and accompanying text in the otherwise obnoxiously wrongheaded concurring opinion of Justice Goldberg in Bell v. Maryland, 378 U.S. 226 (1964) at 297-298.

Because this law was “common law,” it was not universal and did not have the hard clarity of written law. But, its parameters and purposes were understood; hence the name “common law.” Many, if not all, of the states later codified the common law of public accommodation in some fashion or another. These laws could make a real difference in how businesses were run and developed historically. For example, an innkeeper could not impose a unique “dress code” but a restaurateur, who simply offered meals to local residents, could.

To understand how this idea has mutated into the case we are discussing, and without writing a constitutional law treatise on the subject, and more than one could certainly be written, a few more words (OK, more than a few) of legal context are in order. Recall the real-life circumstances of our beleaguered Christian entrepreneur. He is under siege by the Arlington County Civil Rights Commission because he has purportedly violated a county ordinance that prohibits discrimination against someone because of her “sexual orientation.”
Now, our good Christian might very well argue that he is not discriminating against anyone based upon their “sexual orientation” but rather on the content of their video. If this homosexual activist had brought in a video of people fishing on the lake, presumably the Christian proprietor would have duplicated the tape. Here the Christian businessman is not asserting any affirmative right, just that he did not violate the ordinance by discriminating against any person.

Another defense might be procedural. According to Hans Bader blogging at the Open Market blog, there is a specific rule in the Commonwealth of Virginia that does not allow counties and local authorities to enforce anti-discrimination ordinances not otherwise codified in state law. This is apparently an effort to protect state-wide businesses from patchwork rules and regulations that might inhibit businesses from setting up shop in the state.

While both of these might be winners — and we certainly hope they are — on the “I discriminated against the material not the person” defense, one could certainly see a court, the ACLU, and the rest of the Elites making a two-pronged argument to attack this defense. One, videos by nature can and often do include personal material that is typically expressive, meaning speech. You see where we are going here. Refusing to duplicate a man’s video that itself does not contain illegal material would be preventing the customer’s free speech rights and as a “public accommodation,” free speech is as important as travel and commerce (hearkening back to the common law). The second part of this Elite attack would be to say that this argument works a fortiori here because the refusal to duplicate the video is based upon content that is very much a part of who this customer is and “who she is” is a person with a particular “sexual orientation.” In other words, you might be discriminating in your mind only against the material, but the effect is to discriminate against the person.

As to the second defense, that the state does not yet have an anti-discrimination statute and therefore the state rules forbid the county from enforcing the local ordinance, it is only a matter of time. Homosexuals are on the rampage in many areas of the law and a man’s constitutional freedoms ought not to be held hostage to the whims of activist homosexual lobbyists pushing state legislatures around. As much as we might be for a return to a real federalism, which respected the state legislature’s authority, unless this will work across the board to allow anti-abortion laws at the state level and state-level support of religion and school vouchers, then it ought not to be applied selectively to grant homosexuals the right to trample on our freedoms.

And this is what leads us to turn to our Christian friend’s constitutional rights. (We leave aside the state constitution only because we here write to a broader audience.) Doesn’t this devout Christian have even the better argument that his religious freedom, his freedom of speech and his freedom of association are improperly imposed and infringed upon by this county ordinance? Could he not argue that his religion forbids him to handle, print, or even look at such filth? Does the state’s interest here overwhelm his freedom of religion? Or, might he argue that by duplicating these films, he is in a sense speaking in the way a publisher or printer of newspapers or books “speaks?” Aren’t his free speech rights, including his right to remain silent and not duplicate such trash, at least as important as this homosexual’s right to walk into his store and demand that he facilitate her homosexual-activist speech? And, finally, if not most importantly, must he even allow avowed or “public” homosexuals in his store? Doesn’t he have the right to “associate” with whom he chooses?

According to a well-known UCLA law professor, Eugene Volokh, mostly well-known because he founded and blogs on one of the world’s most popular blogs for legal beagle types, named appropriately, The Volokh Conspiracy, our good Christian is in big trouble. First, Professor Volokh assumes there to be no religious freedom issue here. His reasoning relies on one of Justice Scalia’s majority opinions. (Scalia is better known for his dissents.) In Employment Div. v. Smith, 494 U.S. 872 (1990), Oregon outlawed smoking peyote. Smith, a native Indian who smoked peyote as part of his heathen religious worship, was fired and denied unemployment benefits. The question: can the state of Oregon apply a facially neutral criminal law and abridge religious worship. “Facially neutral” just means that it was enacted without singling out religion – i.e., applies to all religions and no religions equally. In other words, the smoking of peyote is illegal whether you smoke it to get a buzz or to elevate your spirit.

In our case, Volokh suggests that the county ordinance in this case, assuming our Christian victim makes a claim that the ordinance violates his religious liberty, would fall squarely within Smith. (Granted we are working off of only a blog and not a legal treatise but the conclusion and analysis are written in a style and syntax to suggest the professor was certain about his analysis.) Volokh’s rationale: he assumes the county officials would be just as happy harassing anyone who refused to reproduce the filthy videos due to a wholly secular distaste of the homosexual content. In other words, the ordinance only incidentally affects religious worship.

One might ask the good professor to come up with a realistic scenario where someone might object to homosexual content and the objection is not at its core religious. We could guess at his answer: a businessman wants to align himself with the more affluent and influential Christians so he refuses to ruin his business over it knowing they might not frequent his shop. In other words, his motive is good customer/public relations. This would turn a religious freedom argument into a kind of freedom of association case (i.e., he wants to associate with the Christian patronizing public), which, given the convolutions of the Court, makes for different and weaker legal arguments. In the end, we still believe that any of the freedoms set out in the First Amendment trump homosexuality and will attempt to make the case below.

The real reason Volokh believes our Christian friend is in trouble is because of the Court’s recent decision in Rumsfeld v. FAIR (March 2006). In that case the Court held that law schools could not keep military recruiters off campuses and that they must, per federal law, provide the same access for the military recruiters as all other non-military recruiters. Because the Court concluded that the universities were not forced to “associate” with the military in any real sense of the word since they could voice their objection to the military and because the Court held that giving the military the opportunity to speak was not negatively affecting the university’s free speech, Volokh finds the comparison between the mealy-mouthed law schools and this good Christian very compelling.

We disagree with Volokh’s reasoning, abbreviated as it may be, on Smith (i.e., religious freedom) and on FAIR (i.e., speech and association) for several reasons. The most important of which is that we are not law professors with nothing else to do but parse legal opinions. We read FAIR fairly based upon its language and find Smith not to apply for the reasons hinted at above.

But, to get at the answers, since many of you are not lawyers (and believe us when we say that is a compliment), we need to take further steps backwards to the language of the Constitution as our founders wrote it and understand how, at least in pertinent detail, it became so convoluted. How is it that judges and law professors can twist and turn in the face of some pretty clear language and even clearer concepts? What follows is what consists of Part II of this essay.

Part II

In order to understand what is at stake in the case of the Christian video duplicator who refused to reproduce homosexual propaganda and has since been sanctioned by the Arlington County Human Rights Commission, we must first be clear about what freedoms are under attack and by whom. Our Christian friend insists that he has the freedom and the responsibility to worship and behave as a Christian at home, on the street, and in his business. This freedom includes essentially four liberties: (1) religious freedom; (2) freedom to associate with whom he chooses; (3) freedom to speak of and about those matters of interest to himself; and (4) freedom to run his business the way he chooses to as long as he does so honestly and according to the rules and regulations reasonably related to the proper running of his business. The party seeking to curtail the Christian businessman’s freedoms is the local authority acting essentially under the color of state law. (Counties, as sub-governmental jurisdictions, get their grant of authority from the state, typically by state statute or constitution.)

We recognize almost immediately that each of the freedoms we have propounded as a shield against government interference in this case is enshrined directly or indirectly in the Bill of Rights, the first ten amendments to the Constitution. Obviously, the first three freedoms the good Christian relies upon are all mentioned directly and memorialized in the First Amendment: Religion, Association and Speech. The fourth freedom is understood to be included in the Fifth Amendment’s protection against the deprivation of a man’s “life, liberty, or property, without due process of law” and further that private property may “not be taken for public use without just compensation.”

Since this is not a legal essay but rather an examination of government and the courts run amok, we will resist the inclination to skip over some very basic issues, but we will similarly resist the temptation to get bogged down in them by trying to make sense of it all. So, before we can conclude that this private businessman has been unfairly harassed by the Arlington County officials, we are forced to understand against which parties the Bill of Rights protects us of such abuse. We begin this inquiry as would any man of sound mind by the language of the First Amendment itself:

Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof; or abridging the freedom of speech, or of the press; or the right of the people peaceably to assemble, and to petition the government for a redress of grievances.

We all note that the Constitution’s Bill of Rights, especially and expressly the First Amendment quoted above, was written as a brake only on the federal government, not on the states. The reason, documented time and again, is clear. Our founders feared not the state governments, where the people had a vested interest in the sovereignty and citizenship at a far more intimate level. Rather, their concerns were of a new layer of government that would by virtue of its sheer size and command of all national institutions of war-making, treaty-making, legislating, and adjudicating, bear the tendency to feed itself with ever greater powers and dominion until a critical threshold would be reached where the states and their sovereignty would be subsumed and eventually consumed.

But alas, all of us alive today know that we live in a country where the plain language of the Constitution means very little if the Court deems it so, and in the case of the application of the Bill of Rights to the states, all the Court needed was the fatal mix of a little ambiguity in the wording of the post-Civil War 14th Amendment combined with an abuse of the most basic norms of legal interpretation and common sense to turn the whole matter on its head and apply almost all of the Bill of Rights to the states. (See SANE Issue Paper on the subject.) The effect of course is we no longer really live in a federal system, so important to the founding of this country and its principles of freedom, but rather in a hegemonic national system where freedoms come packaged in ways that tend to enslave and permit the grossest abuses of power institutionally. Abortion of course comes to mind as the quintessential example of this abuse. In the name of a national right of “privacy” or “a woman’s right to control her body by choosing to abort,” a concept no where existing in the Constitution and indeed created out of whole cloth, the Court exacted on the states a radical diminution of sovereignty in a way that both enslaves and provides structural mechanisms for government sanctioned murder. To permit and protect by federal law what some states had considered and determined legislatively the murder of an unborn child and to do so in the name of this newly crafted “right,” is certainly a strained effort to reach one of the heights of tyranny.

The effect in our case of the Court’s “selective incorporation of the Bill of Rights into the 14th Amendment” means that while our Christian video duplicator would normally prefer to rely on his ability to fend off this instance of local abuse by attacking it judicially and politically at the county level and even at the state level, he now turns to the federal constitution and the First and Fifth Amendments mentioned above. But of course this raises the interesting and ultimately important point. Might our good Christian be perfectly willing to do battle solely at the local and state level to protect his freedoms if in all other areas usurped by the Court for the benefit of the federal government there would be a return to the original intent and meaning of the U.S. Constitution? While we certainly cannot speak authoritatively for this one Virginian, our instincts and our druthers tell us yes. If we would undo, for example, Roe v. Wade, 410 U.S. 113 (1973), and Lawrence v. Texas, 539 U.S. 558 (2003) (the Court overturned prior precedent and ruled state anti-same-sex laws unconstitutional), such that the U.S. Constitution could no longer be used as a club to beat the states into a state of unconsciousness, citizens of the individual states could then exercise their liberty in real fashion and push for stronger moral laws or greater state constitutional freedoms, as they wish. In other words, liberty allows the people to exercise their political rights and responsibilities in the legislative and political processes at the state level to create a moral and social environment fitting for the people of that state. And, if the state in which a person resided became morally too oppressive or its reverse, the offended person would be free to move to a more appealing environment in one of the other 49 states (a freedom the Court has held as fundamental to our federal system).

Given today’s constitutional environment, however, our Christian duplicator will by necessity add to his state constitutional and statutory protections by invoking his now nationalized federal constitutional “rights” embodied in the First and Fifth Amendments. By doing so, of course, he becomes part of the problem. He insists he has no effective choice to protect his worship in the face of constitutional and federal corruption. As noted above, since we write now to a “national” audience, we will deal with only the federal claims predicated upon the Bill of Rights.

So it is we finally return to the defense of this good Christian that Professor Volokh is so certain will fail. We deal first with his weakest position against the county ordinance. The County of Arlington claims to have an important interest to prevent discrimination within its legal boundaries. The discrimination it seeks to prevent here, among many others, is against those poor souls who live their lives, either by choice or force of nature, or some combination thereof, according to a different “sexual orientation.” Presumably the county has determined that this “sexual orientation” is not a behavior against which its residents should properly discriminate.

Now we don’t know precisely upon what basis the county officials have made this rule but we will presume on their behalf that their ordinance is based upon the state and local authorities’ ability to regulate commercial and non-commercial affairs within their borders predicated upon the state’s “police powers” to protect the public’s health, safety, and morals. Indeed, we have already mentioned the historical common law tradition that gives the sovereign authority to impose upon the public accommodation providers the requirement to serve all travelers unless good cause exists to refuse them. Now, while we might take up the argument in some other place whether a local video duplication shop can by any normal assessment be considered a public accommodation, and even if it was so classified, would not a moral disgust for reproducing propaganda promoting abominable behavior rise to the level of good cause, the analysis in a strictly commercial setting suggests these arguments would be of no avail. The reason is simply because the modern constitutional test established by the Court for the regulation of just about all aspects of commerce by the states is the well-known “presumption of constitutionality” and “rational basis” test. The latter test is only defeated in the case of manifest irrationality, an almost impossible burden to overcome. So lacking any other factor relevant to the video duplicator’s defense, the Fifth Amendment’s protections of due process or of an unlawful “taking” of his business by way of a burdensome regulation falls flat. (In all fairness to Professor Volokh, he didn’t even address this issue, realizing it was a slam-dunk for the county.)

But, this doesn’t end the analysis by far and we begin to sense that this is precisely where the state’s police power runs into some headwinds. While strict commercial regulations have in essence been removed from the courts and turned over to the people of the states, counties, and municipalities to register their disgust with overbearing and statist regulations by going to the polls and throwing the rascals out, the Constitution does not turn its back on two broad classes of state actions that might otherwise pass muster. One is if the state’s exercise of its police powers involves a law or regulation that violates the Equal Protection Clause of the Fifth Amendment, and the other is where the police power is directed at a fundamental right, or now — post-Lawrence v. Texas — we might add to this list some liberty that we might sarcastically but sadly refer to as a sex liberty.

In Equal Protection cases, for example, where a state or local law provides for some discrimination between classes of people, the test purportedly applied is still the rational basis test if the class distinction is not racial, ethnic, or national origin-based. In these latter categories, the Court demands a “strict scrutiny” to determine that the discriminatory law or practice is furthering some “compelling state interest.” The analysis here requires the state to show that the discrimination is the least offensive way to get at the compelling state interest. Granted, in some cases, such as gender-based discrimination, the Court has muddled the analysis with a heightened scrutiny that is something more than the garden-variety rational basis test, which almost any law can overcome, but less than the strict scrutiny, which almost no law can satisfy. Justice O’Connor was of course famous for her affection for these various and sundry categories without really explaining to us precisely when and how they were to be applied. (For an example of the silliness of these categories and their sanctification by some justices, see O’Connor’s concurring opinion in City of Boerne v. Flores (1997) and Justice Scalia’s critique of O’Connor’s use of them in his dissent.)

In both the Equal Protection and the substantive Due Process cases, if the state action negatively impacts a “suspect” or “protected class,” such as a race-based class, or a fundamental right, and arguably one that has historical pedigree such as the right to free political speech (although Roe’s abortion right was called fundamental yet never considered historically so), the Court exacts the highest level of constitutional scrutiny. Now, even here there has been fudge. If a law is passed that is “facially neutral,” and there was no manifest state purpose to burden a fundamental right, then even if some fundamental right is burdened “incidentally,” the state need not show a “compelling state interest” but it will suffice to show a legitimate one with a rational basis test applied to the method.

The recent controversial case making this point was the Smith decision authored by Justice Scalia. In that case, the Court said that a criminal law that only incidentally restricts religious practice is constitutional and will not be judged by some compelling test, even though religion is certainly a fundamental right and historically so. Scalia’s opinion boils down to a practical one: we cannot give credence to all of the crazy beliefs in this country or bend our general laws to them. He did suggest in dicta citing other cases to square his rule that a compelling test could be applied in two different kinds of free exercise cases: where there is a clear intent to burden a religious practice or when there is some additional fundamental right, like the parents’ prerogative to educate their child in a fashion most suitable to their religious and moral beliefs, where the two fundamental rights together add up to a compelling test. This has been referred to as the “hybrid” free exercise case.

Now if all of this testing and shifting burdens confuses you, don’t worry; it has confused the best of the legal scholars and most assuredly has confused the justices. All one needs to do is once again turn to Justice Scalia’s dissent where he addresses Justice O’Connor’s concurring opinion in Boerne or his dissent in Lawrence and you will understand what happens when you abuse common sense and language. But at least we now have the framework to see what will happen to our Christian businessman, assuming the standards don’t shift yet again, which of course is a big IF and one not likely to hold its ground.

Our Christian friend can attack the county using the Smith case directly and indirectly quite effectively in a number of ways. One, he will argue this his religion forbids him from dealing with homosexual propaganda and that he opened up his business as a Christian to run a Christian-centered business. He has clearly established that he will not tolerate material or deal with material that runs counter to his religion. Two, he has two other fundamental rights at issue. He has chosen to associate only with those people who respect his decision. He does not discriminate against any person based upon race, ethnicity, national origin or even sexual deviance as long as the sexual deviance is private and not exposed in his store. Further, his religion demands that not only his speech be pure and Christian, but that he do nothing affirmatively to further un-Christian-like speech. Because his free exercise of religion claim is intimately connected to his claims of association and speech, he would fall under the “hybrid” case wherein two or more fundamental rights trump a legitimate state interest. (And, isn’t his case made even more compelling by the fact that his is a family-owned and operated business? Does he not have an intimate interest to protect his family from confronting smut and the people who advocate it?)

While Volokh recognizes the “hybrid” examples provided by Scalia to distinguish Smith from earlier cases, he believes this rubric will be of no lasting import. He offers no explanation. We might provide one for him. Scalia used this “hybrid” analysis to get around bad prior decisions that used the “compelling state interest” test when he would not have, so he created a special discrete rationale that will be undermined even further or wholly dismissed in future cases. This process of marginalizing bad prior decisions until the Court feels comfortable rejecting them is well-documented. But this is not what is going on here.

What the professor misses is that Scalia makes clear in Smith that the state must be exercising some recognized authority. In the typical commercial setting, the state’s police powers have been granted broad application. But when those police powers force a man affirmatively to engage in some behavior that violates his religious convictions, the burden should certainly be on the state to justify its imposition. Thus, forcing a parent to educate a child in a manner against his wishes and in violation of his religious beliefs is constitutionally unacceptable even though this “additional” right to raise one’s children is not expressly mentioned in the constitution. While under the Commerce Clause (for the federal government) and under the broad police powers of a state there may be a right to force private businessmen into serving black customers because race is a matter of constitutional concern, forcing a Christian businessman not only to serve a homosexual but also to handle, view and reproduce his sinful videos is beyond the pale.

Further, as suggested by implication in Smith and developed in other cases more explicitly and not overruled by Smith is the idea that government’s actions that burden a religious act, such as the law against illegal drug use, are not the same as a law or ordinance that affirmatively demands some action that counters the religious tenets of the objector. This was precisely the case in Wisconsin v. Yoder, 406 U.S. 205 (1972), with regard to forcing a manner of educating children upon objecting parents, which was held to violate the Free Exercise Clause. Similarly in Bowen v. Roy, 476 U.S. 693 (1986), and in Lyng v. Northwest Indian Cemetery Protective Association, 485 U.S. 439 (1988), the Court was careful to say that the government may do what it must (i.e., a government act) and apply its policy or law to all citizens (i.e., a general prohibition against some act by the citizen) to run its affairs in a facially neutral way even if it burdens the religious practice of some individual or group. In Lyng, the government said if you want certain government benefits you must have a social security card and the government will use the number to track the participants. The religious objector said such use of a numbered identification system robs a person of his spirit per his religion. The Court held this not to be a case of infringement or requiring any special inquiry because the government was simply carrying out its governmental duties in a wholly neutral fashion and not forcing any specific act (unless of course you wanted the benefits, and even then the act that violated the religious tenets was arguably just the use by the government of the number.)

The case at hand is much different. The county is not carrying out any governmental function in a neutral fashion; it is trying to enforce a moral position about homosexuals and their conduct. And, this is wholly unlike statutes against drug use. The criminal statutes prohibiting peyote smoking, while arguably based upon a moral position that such drug use is bad and not just a public health hazard, do not impose an affirmative act upon the Indians violating their religious beliefs – the law simply prohibits some act.

According to the Arlington County officials, a religious Christian must serve customers and deal with their morally reprehensible material in violation of his religious tenets. In such a case, the state takes a moral position that forces a person to do something affirmatively that violates his religion. This ordinance and its enforcement is a far cry from the law against drug use in Smith and should be subject to a scathing review, irrespective of the label placed on the review, be it “strict scrutiny” or “compelling state interest.”

Moreover, if one removes the discussion from the legalese and examines the issues in the light of common sense, much more can be gained. For example, good sense tells us that you cannot twist this semantically into the anti-peyote neutral prohibition case. Here, the “anti-discrimination” ordinance demands action – the Christian must do business with a homosexual and duplicate his propaganda. Further, the county’s logic must be that homosexuality is not bad behavior and therefore no person in the county may discriminate against those who advocate such behavior and their propaganda. But this anti-discrimination law is not directed against “status” discrimination like race or gender where normally there would be no moral attribution one way or the other.

This is rather an ordinance that forces people to deal with people whose behavior they determine to be immoral. This is akin to saying that the county may determine that we cannot lawfully decide not to do business with liars, if their lies are not otherwise violations of the law, or that we cannot choose not to do business with adulterers.  If Smith or any other case is understood to mean that the state may, through its police powers, remove from us our liberty to avoid contact with people who exhibit bad behaviors, what is left within the moral sphere other than moving to a cave? And, notwithstanding whatever liberty rights arise out of any kind of deviant sexual relationship after Lawrence, a liberty that allows a man to engage in any consensual sexual act his mind and libido might conjure up, how in the world does that translate into a Christian giving up his constitutionally protected freedom to avoid such behavior and material?

Moreover, given the expressive nature of the material and the fact that the Christian was required to handle the material, look at it, and deal personally with the homosexual publicly advocating that material, how does the Arlington County ordinance not directly infringe on the Christian’s right of speech and association?

This brings us to Professor Volokh’s real argument, Rumsfeld v. FAIR. In essence, the professor wants to say that the Court’s ruling there, forcing law schools to accept military recruiters and denying the schools’ claim that imposing military speakers upon them is a form of forced speech and association, is, in effect, no different than forcing homosexuals and their videos upon the Christian. Again, our legal scholar simply ignores the language and logic used by the Court in FAIR. The Court began by stating clearly that Congress has an explicit constitutional authority and responsibility to do what it takes to raise a standing army. That includes recruitment. That means something. And, even though the statute in FAIR merely conditioned federal monies on equal access, the Court stated clearly that because of the grant of constitutional authority, it could have imposed equal access directly.

Moreover, only a law professor can muster the conviction to say with any seriousness that military recruiters to raise a standing army to protect this county’s national existence, all of which is mandated upon Congress by the Constitution, is somehow akin to forcing a Christian in his family-run store to “tolerate” blatant homosexuals and their propaganda all in the name of some moral determination that Christianity is wrong on the question of the sinfulness of homosexuality. While the state’s police powers might be used to protect “status” classes based on race and gender, how in the world do they permit the same to be used against people, such as devout Christians, who choose to live by and advocate behaviors and lifestyles that fall squarely within the moral and religious purview? While a police power might be used to prohibit immoral behavior, such as prostitution, or sodomy (at least before Lawrence), there simply can be no grant of authority to any governmental body that permits it to mandate that good men and women, and their children, associate or do business with those who advocate queer or sexually deviant behavior.

If we turn to the plain language used by Chief Justice Roberts in FAIR, we find a good and lucid opinion that avoids the silliness of categories like “strict scrutiny” and “compelling state interests,” and instead goes to the issues directly. As we noted above, the opinion works off of an architecture of logic resting on the constitutional importance of raising a standing army and the responsibility Congress has in this area. Further, Chief Justice Roberts, in his opinion for a unanimous Court, explained that the law schools objecting to this imposition were not being forced to say anything against their will nor were they asked to do anything that might be considered “expressive conduct.” Finally, the chief justice pointed out that whatever forced “association” might be imposed by the statute, it is not realistically expressive given the realities of campus recruiters.

The Court also set up as counter weights two attempts by homosexuals to force themselves on groups that stood against such conduct: Hurley and Boy Scouts of America v. Dale, 530 U.S. 640 (2000). Thus, the imposition of military recruiters was not like Hurley where the homosexuals demanded to march in a private St. Patrick’s Parade or like Dale where a homosexual demanded to be accepted as a Boy Scout leader. In both those cases, the Court was clear: those two cases involved an association of people who came together to promote their moral view of the world. A homosexual, who demands admission precisely because he is a homosexual, is demanding that his immoral behavior be accepted as morally acceptable. If this is not “expressive conduct” nothing is. Imposing “content rich” and expressive conduct on a Christian who opposes such conduct and to do so through a law that forces him to actually produce political content that he disagrees with, is so unlike a law school providing space for military recruiters on campus based upon a statute of Congress, the authority of which comes from an explicit constitutional mandate, that one wonders how in the world Professor Volokh was so certain of the opposite conclusion.

To belabor this point, with the requisite apologies: Does the free speech legal expert not see a difference between the FAIR facts as developed by the Court’s opinion and our Christian businessman? Is there no substance to the obvious distinction of a Christian who forms his business around his family and conducts his business as a Christian and promotes his business as Christian? Does one somehow lose these choices and freedoms simply because he does so in the context of a business? Must it even be a small or family-run business to claim this liberty? Should a Walmart lose this right just because it is big?
The problem we have sought to identify in this now extended essay is two-fold. One, the Court has abused any decent boundaries sensibly imposed on its authority to rule upon constitutional cases and controversies. While some decisions are good and sound, others, like the entire line of 14th Amendment incorporation cases and those that expanded the Commerce Clause beyond any reasonable recognition (not discussed here), and of course like Roe and Lawrence, are constant reminders that this country cannot survive more of the same. If the Court’s appetite for power is too great to subject itself to self-restraint, Congress needs to impose restraints for it, or the People should do so through constitutional amendment. But, thankfully, the latter, more radical path is not necessary. While this is not the place to discuss how and how far Congress may go to curb the jurisdiction of the Supreme Court, and a fortiori, the congressionally established lower federal courts, it is indisputable that Congress has substantial powers in this area by virtue of the plain language of Article III of the Constitution. Until now, Congress has essentially handed the Court a blank check. It is high time that Congress exercises its constitutional responsibility.

And, if the federal government and the Supreme Court would remove itself from those areas within the confines and purview of political life in the states, arguments like the ones made here on behalf of the Christian would be handled wholly at the local level. If the Arlington County Human Rights Commission continued to abuse its authority, our Christian could assemble his friends and fellow church-goers and petition local and state officials and, if need be, use the state courts. In those rare instances where the Constitution indeed speaks to an issue as belonging within the national purview, like emancipation and the right to vote, then the case rightfully belongs in that jurisdiction. But these are the rare issues. Federalism and the authority of the states to regulate behavior ought to be a matter for the states to work out. If homosexuals don’t like the laws (that used to) criminalize sodomy in Texas, they should move to Howard Dean’s home state or Barbara Boxer’s. We are sure they will be far more accommodating.

The second point we have tried to make here is that law professors cannot be trusted to interpret anything. They are like hired guns and we ought to recognize that simple fact. For every “distinguished” and “well-published” “authority” on what the law says, you can find one who stands equally weighted with respect and who holds oppositely. The reason for this is not some evil resident in the souls of these men, but rather the abject silliness of the Court’s rulings and language, which works to provide enormous temptations for the philosophically weaker classes.

As a libertarian, Professor Volokh and his co-conspirators should acknowledge their substantial “philosophical” bias and then ask themselves to penetrate that bias for meaning. What they will find at the end of the day is an empty jurisprudence that has been stripped of this country’s Judeo-Christian roots. The result of this “stripping” is the tyranny of a libertarian “philosophy” grounded in economics that renders man no different from a slug and national existence no more meaningful than “protecting” homosexuals and their efforts to use government power to require moral abdication by the rest of us. Indeed, there can be no better or sadder proof of this point than a long and involved discussion, philosophically quite infantile, on that same blog among serious law professors about whether public urination and fornication ought to be illegal. It just doesn’t get much more pathetic than that.