I take no pride in saying “See, I told you so,” except as it jolts us all out of our slumber of inaction in protecting the most important tenets of the First Amendment. Just three days after the court narrowly ruled in favor of the Colorado baker who declined to bake a cake for a gay union ceremony, an Arizona appeals court ruled, as we predicted, that based on the Masterpiece decision, any law coercing an individual to serve gay ceremonies is kosher so long as it’s applied neutrally.
Bizarrely, last week, rather than taking the Masterpiece ruling as a wake-up call to immediately fight for religious liberty through state and federal religious protection and private property protection laws, a number of conservatives heralded the decision as a victory for the cause of freedom. They failed to notice that Kennedy used the word “neutral” over a dozen times in indicating that a neutral coercion law against conscience and property is not only constitutional but needed to uphold the real inalienable rights of “dignity” through forcible use of someone else’s private property.
Last week, I warned that this opinion would green-light blue states, lower federal courts, and state courts to infringe on property and conscience rights in 99 percent of the other cases that didn’t involve the anomalies of the Colorado Civil Rights Commission. On Thursday, the Arizona Court of Appeals confirmed our worst fears. The court cited Masterpiece nine times in asserting that while a “baker interposing a sincere religious objection to providing a wedding cake for a gay couple was entitled to a neutral and respectful consideration of his claim,” he cannot “impose a serious stigma on gay persons.”
Joanna Duka and Breanna Koski, who own a boutique shop selling artwork for home décor and weddings in Phoenix, are being forced to serve homosexual ceremonies under a Phoenix municipality ordinance limiting conscience rights when they come into conflict with the sexual identity agenda. They wanted to post a sign outside their Brush & Nib Studio stating that they won’t create any artwork that violates their beliefs, which includes “artwork that demeans others, endorses racism, incites violence, contradicts our Christian faith, or promotes any marriage except marriage between one man and one woman.”
What was the response of the appeals court? Remember when I pointed out how Kennedy used the word “neutral” over a dozen times? The court used his dicta to coerce these Christian artists to serve homosexual ceremonies and deny them the most basic free speech of posting a respectful sign outside their shop. They drew upon the following quote from the Masterpiece decision:
It is a general rule that such objections do not allow business owners and other actors in the economy and in society to deny protected persons equal access to goods and services under a neutral and generally applicable public accommodations law.
So, Nazis can march raucously through a Jewish neighborhood shouting hateful slogans, but Christians can’t post a respectful sign outside their own shop stating up front the type of services they do and do not offer.
Anything or anybody in the sexual identity alphabet soup is now a protected class with rights to other people’s property. According to the court, the First Amendment does not exist because it’s a case of “refusal of service to the LGBTQ community and not a First Amendment challenge to a specific message requested by a specific customer.”
We have now reached a point in time when an inane political acronym is now codified into law to the point that it supplants our founding principle of free speech. Why can’t we now create a “CPJ” acronym of protected classes for Catholics, Protestants, and Jews?
This opinion from Judge Lawrence Winthrop should send chills down the spines of not only religiously oriented people but anyone who believes in free speech and private property. After Obergefell and Masterpiece, we will see a torrent of anti-speech cases emanating from state and lower federal courts unless we the people act to counter the lawless, usurping courts.
Last week, I noted that religious liberty was dangling by a thread. That thread is being sawed away as we speak. If conservatives and secular defenders of free speech and property rights are content to stand idly and do nothing to promote legislative solutions and judicial reform, nothing less than the purpose of the American Revolution will be lost. Let us not forget the warnings of Madison during the first few years of the republic:
Government is instituted to protect property of every sort; as well that which lies in the various rights of individuals, as that which the term particularly expresses. This being the end of government, that alone is a just government, which impartially secures to every man, whatever is his own. […]
More sparingly should this praise be allowed to a government, where a man’s religious rights are violated by penalties, or fettered by tests, or taxed by a hierarchy. Conscience is the most sacred of all property; other property depending in part on positive law, the exercise of that, being a natural and unalienable right. To guard a man’s house as his castle, to pay public and enforce private debts with the most exact faith, can give no title to invade a man’s conscience which is more sacred than his castle, or to withhold from it that debt of protection, for which the public faith is pledged, by the very nature and original conditions of the social pact.
Daniel Horowitz is a senior editor of Conservative Review. Follow him on Twitter @RMConservative.