Are unpopular views still protected by the First Amendment? Do public accommodation laws require commercial bakers to provide wedding cakes for same-sex weddings? Or does the First Amendment's protection against compelled speech extend to the making of wedding cakes? Those are the questions the Supreme Court considered this week when it heard the case of Masterpiece Cakeshop v. Colorado Civil Rights Commission. Robbie P. George and Sherif Gergis explain why the rights of the baker, in this case Jack Phillips, owner of Masterpiece Cakeshop, should prevail:
If wedding cakes are expressive, whether by words or mere festive design, what's their message? We can tell by their context since, as the court notes, a symbolic item's context "may give meaning to the symbol." Thus, the court found that an upside-down flag with a peace sign carried an antiwar message — protected as speech — because of the context of its display. Likewise, a wedding cake's context specifies its message: This couple has formed a marriage. When the specific context is a same-sex wedding, that message is one Mr. Phillips doesn't believe and cannot in conscience affirm. So coercing him to create a cake for the occasion is compelled artistic speech.
Note that this argument wouldn't cover all requirements to make artistic items. The law may force photographers to do photo portraits for Latinos as well as whites since that doesn't yet force them to create art bearing an idea they reject, which is all the compelled-speech doctrine forbids. But custom wedding cakes carry a message specific to each wedding: This is a marriage.
Can Colorado justify its compulsion anyway? Some say yes: Fighting discrimination — disfavored conduct, not speech — is the general goal of Colorado's public-accommodations law. And if that goal is legitimate, they continue, so is every application of this law.
Remarkably, given how commonly one encounters this answer, the court has explicitly considered and rejected it twice. In Hurley v. Irish-American Gay, Lesbian, and Bisexual Group of Boston (1995), the court held that while anti-discrimination laws do not "as a general matter" violate the First Amendment, they do when "applied in a peculiar way" that burdens speech. In that case and in Boy Scouts of America v. Dale (2000), the government said there was sexual-orientation discrimination, both times under its public-accommodations laws. The goal in both was to fight discrimination rooted in opposition to "homosexual conduct." Still, the court said both times, this generic goal could not justify coercion that interfered with the content of anyone's expression.
In these cases, after all, the precise act being targeted just is the speaker's choosing ("discriminating") among which ideas to express — exactly what the First Amendment exists to protect. As the court put it in Hurley, the "point of all speech protection" is "to shield just those choices of content that in someone's eyes are misguided, or even hurtful." [The New York Times]
Everyone should worry about the threat of state-compelled speech, says gay marriage supporter Andrew Sullivan:
It always worries me when gays advocate taking freedom away from other people. It worries me as a matter of principle. But it also unsettles me because some gay activists do not seem to realize that the position they're taking is particularly dangerous for a tiny and historically despised minority. The blithe unconcern for the First Amendment in the war on "hate speech," for example, ignores the fact that, for centuries, the First Amendment was the only defense the gay minority ever had — and now, with the first taste of power, we are restricting the rights of others in this respect? Ugh. Endorse the state's right to coerce speech or conscience and you have ceded a principle that can so easily come back to haunt you. The freedom of any baker to express himself is, in this respect, indistinguishable from that of any gay person to do so — a truth that our current tribalism blinds so many to. I hope, in other words, that the baker prevails — but that the Supreme Court decision doesn't turn on religious so much as artistic freedom. [New York]
How will the House and Senate tax bills affect taxpayers? Rachel Greszler calculates the savings for seven different hypothetical taxpayers, concluding:
On net, however, most taxpayers—particularly lower- and middle-income taxpayers and businesses—will pay less in total taxes. Even more important than total taxes paid, however, is marginal tax rates. That's because a lot of decisions are made at the margin.
For example, a worker is far more likely to work an additional hour if it counts as overtime and provides the equivalent of 1.5 hours' worth of pay. And an individual is more likely to make a $1,000 contribution to his retirement savings account if that savings goes tax-free and means he can put all $1,000 away, instead of first having to pay between $100 and $400 in taxes on the savings.
Lower marginal tax rates are a big driver of economic growth, and the lower the rates, the higher the growth. Under the House bill, lower- and middle-income earners and businesses face lower marginal tax rates, but some high-income earners face higher marginal tax rates. The Senate proposal reduces the top marginal tax rate for an overwhelming majority of taxpayers, with the largest reductions occurring for businesses and for lower- and middle-income Americans.
While the proposed tax reforms do not achieve 100 percent of the potential pro-growth impacts that they could, they go a long way in helping to jump-start America's struggling economy and put it on a pathway toward higher long-term growth. [The Daily Signal]
Foreign policy catches up to reality. Jonah Goldberg on President Trump's decision to recognize Jerusalem as Israel's capital:
Before you can debate whether this was a good move, you must acknowledge one glaring fact that the chatterers want to ignore or downplay: It's true. Jerusalem is the capital of Israel. The Knesset, Israel's parliament, convenes there. Israelis call it their capital for the same reason they claim two plus two equals four. It's just true.
What makes the decision controversial is that everyone had agreed to pretend it wasn't the capital in order to protect "the peace process."
That's another term that doesn't quite correspond with reality. There is no peace process. Mahmoud Abbas, the Palestinian president finishing the twelfth year of his four-year term, has refused to meet with the Israelis to discuss anything since early in the Obama administration.
Part of the blame for that, of course, belongs with Obama, who built an entire foreign policy around what he wanted to be true rather than what was actually going on. Obama sought to distance the U.S. from Israel on the assumption that Israel was the unreasonably stubborn party in the "peace process." That's why, on the way out the door, the Obama administration broke with precedent and opted not to veto a U.N. Security Council resolution declaring East Jerusalem "occupied territory."
This implied that, as a matter of international law, the Western Wall and the Jewish Quarter of Jerusalem itself really belong to the Palestinians — which is an insane fantasy. [National Review]
You want a free and open Internet? Eliminate government barriers to more competition. Too many local governments, writes Ryan Radia, want to use permitting as a cash cow:
When a firm wishes to deploy wireline broadband to residents of an existing community, it typically must navigate a complex web of municipal and state regulations that govern the use of public rights of way. Although some governmental oversight over projects that entail digging up public roads or other public lands is appropriate, the processes by which companies must obtain permits and pay fees to obtain permission for such projects is often extremely complex and costly. The result is that only firms with deep pockets and extensive experience dealing with local and state officials are typically willing to pursue large-scale broadband deployment initiatives.
On a few recent occasions when a company has sought to deploy wireline broadband on a limited scale, the towns in which such networks have been built are those that have committed to offering a simple permitting process, reasonable fees, and streamlined access to public rights of way. For instance, when Google announced plans to deploy a fiber-optic residential broadband service known as "Google Fiber" in 2010, the company solicited applications from U.S. communities and ultimately selected Kansas City as its first deployment site.
Google's passive approach to broadband buildout stands in contrast to the traditional method employed by telecom providers, who typically go from town to town soliciting permission to deploy new broadband infrastructure. If a city insists on onerous terms as a prerequisite for allowing a company to deploy broadband there, the provider might simply skip over that city—as happened in Alexandria, Virginia, in 2010 when Verizon announced it could not reach an agreement with the city regarding the proposed deployment of Verizon's FiOS broadband network. [Competitive Enterprise Institute]
Monument abuse is scaled back. This week, President Trump signed proclamations significantly shrinking the size of two national monuments, the Bear Ears National Monument and Grand Staircase-Escalante National Monument, both in Utah. It's the right move, write Bonner Cohen and Martha Boneta:
In doing so, he has shown a respect for the rule of law that was conspicuously absent when President Bill Clinton created the Grand Staircase-Escalante National Monument in 1996, and when President Barack Obama designated the Bears Ears National Monument in 2016. Under the Antiquities Act of 1906, only objects of historic or scientific interest are to be protected "within the smallest area compatible with the protection of those objects." In keeping with the letter and spirit of the law, the first national monument, Devils Tower in Wyoming, was less than 1,200 acres.
Compare that size with Clinton's Grand Staircase-Escalante designation, which covered 1.9 million acres or Obama's Bear Ears designation, which came in at 1.35 million acres. A law originally intended to protect Native American artifacts from plunder was transformed into an instrument to create de facto wilderness areas, with severe restrictions on land use and public access. Instead of safeguarding sacred tribal sites and archeological treasures, the law has been stretched to include protecting World War II bombing craters, "biodiversity," "view sheds" and "remoteness."
What's more, under the Wilderness Act of 1963, only Congress has the power create wilderness areas, not the White House through executive fiat. [Daily Caller]
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