SALT LAKE CITY — The First Amendment's free speech clause was once best known for protecting civil rights activists and anti-war protesters. But today, it's playing a growing role in cases affecting conservative religious Americans.
Two of the most notable religion cases before the Supreme Court last term hinged on free speech claims. In National Institute of Family and Life Advocates v. Becerra, the justices considered whether pregnancy centers that oppose abortion rights should be forced to share information about abortion access. In Masterpiece Cakeshop, Ltd. v. Colorado Civil Rights Commission, a Christian baker described his wedding cakes as a form of speech, asking to be protected from having to express support for same-sex marriage by selling a cake to an LGBT couple.
The Supreme Court sided with the conservative religious plaintiffs in both cases, although Masterpiece Cakeshop ultimately wasn't decided on free speech grounds.
Evangelical Christians watched the Supreme Court's actions closely, hoping the First Amendment would protect their increasingly unpopular views. The free speech clause has renewed significance for evangelical Christians at a time when their views on social issues are out of step with most Americans, said Andrew Lewis, author of "The Rights Turn in Conservative Christian Politics: How Abortion Transformed the Culture Wars."
"Rather than saying certain views are more moral, they'll say they have a right to express their views," he said.
This free-speech fight taking place in state houses and courtrooms has given evangelical Christians deeper respect for other communities who feel silenced by government policies, said Russell Moore, president of the Ethics and Religious Liberty Commission of the Southern Baptist Convention.
"There's a sense of empathy for others that comes with having basic freedoms challenged for oneself or one's own group," he said.
Life in the minority
Highlighting the Becerra abortion-related case, a recent New York Times analysis questioned whether political conservatives had "weaponized" the First Amendment, taking advantage of the current Supreme Court's friendliness to free speech claims to further their political agenda.
Lewis and others take issue with this characterization, at least when applied to evangelical Christians. Conservative believers shouldn't be criticized for trying to protect themselves amid cultural shifts, they said.
"As conservative Christians have moved from the cultural majority to the cultural minority, these rights claims become more necessary," said Lewis, an assistant professor of political science at the University of Cincinnati.
Evangelical Christians are in the minority on a number of social issues today, but the group's opposition to same-sex marriage has caused the most legal conflict in recent years. The Supreme Court legalized same-sex marriage in June 2015 and members of the LGBT community enjoy much more public support now than in the past.
In 2001, 35 percent of U.S. adults favored same-sex marriage. By 2017, that share of the population had increased to 62 percent, according to Pew Research Center.
"Culture has shifted pretty rapidly under conservative Christians' feet," Lewis said.
People with unpopular views are more likely than others to be involved in free speech lawsuits, said Mark Rienzi, president of the Becket Fund for Religious Liberty.
"If you have a majority viewpoint, you have every bit as much protection from the First Amendment, but you're much less likely to need it," he said.
The chief executive officer of Mozilla, a software company, stepped down in 2014 after his opposition to same-sex marriage led to calls for a boycott of Mozilla Firefox, a popular web browser. Chick-fil-A restaurants dealt with protesters and boycotts in 2012 after the company CEO suggested that God rejects same-sex marriage. Just last month, Twitter CEO Jack Dorsey apologized for tweeting support for Chick-fil-A, after an outcry from users.
Americans who object to same-sex marriage for religious reasons have sometimes struggled to square their own beliefs with government policies. Jack Phillips, a baker and owner of Masterpiece Cakeshop in Colorado, sued the Colorado Civil Rights Commission after he was penalized for refusing to provide a cake for a same-sex wedding celebration.
"To some segment of the country, it's not enough to have a Supreme Court ruling and the government say it approves of and allows same-sex marriage. They'd say we need to outlaw or make outcasts or people and businesses that won't clap their hands" for gay couples, Rienzi said.
Christians who oppose same-sex marriage for biblical reasons feel that to express support for an LGBT union would require them to disobey and dishonor God.
"If the state ever attempts to force us to call marriage that which is not marriage in our churches and ceremonies, let's obey God, even if that means we sing our wedding hymns in the prison block," Moore wrote in 2016.
However, these Christians have mostly given up on trying to convince other Americans that same-sex marriage is morally wrong, Lewis said. They're using free speech claims to ensure they don't have to violate their own conscience.
"I think most (conservative Christian) advocates have given up on trying to Christianize the whole culture and have, instead, tried to find room for themselves in the culture," he said.
Strengths and weaknesses
Religion-related free speech cases have also been more common since it became harder to win a lawsuit on a religious exercise claim alone, said Michael Moreland, professor of law and religion at Villanova University.
In 1993, the Supreme Court ruled against two members of the Native American Church in Employment Division v. Smith, deciding that a neutral government policy does not violate the First Amendment's religious exercise clause even if it interferes with a religious ritual. That case narrowed how the clause can be applied.
"As long as the government isn't targeting a religion for special disfavor, it's harder to bring (religious exercise) claims," Moreland said. So religious plaintiffs began to lean more heavily on the First Amendment's free speech protections where they could.
This approach has led to a number of legal successes at the Supreme Court, partly because recent lawsuits were heard by a group of justices who were sympathetic to free speech claims, he added.
"The state of speech has been especially strong the last several years in a wide variety of contexts," Moreland said.
These successes have troubled some on the left, who worry about how broadly the free speech clause is being applied, said Floyd Abrams, a First Amendment lawyer, to The New York Times.
"The progressive community is at least skeptical and sometimes distraught at the level of First Amendment protection which is being afforded in cases brought by litigants on the right," he said.
In recent years, the Supreme Court has said the First Amendment allows for new limitations on public labor unions and fewer regulations on campaign spending.
These cases illustrate how difficult it can be to define what counts as protected speech under the law. The Supreme Court justices struggled with this question during oral arguments in the Masterpiece Cakeshop case, asking Phillips' legal team to explain which wedding-related services are expressive.
"Why is there no speech in creating a wonderful hairdo?" asked Justice Elena Kagan during oral arguments on Dec. 5.
The Supreme Court side-stepped these confusing, speech-related questions in its ruling, deciding the problem at the heart of the case was the Colorado government's disrespect for Phillips' religious beliefs, not forced speech. Here, the First Amendment's religious exercise clause mattered more than its free speech protections, Rienzi said.
"The case was presented and argued as a speech case, but it was decided as a religion case," he said.
Free speech for all
Growing reliance on free speech claims is changing the evangelical community, according to researchers and Christian leaders. As evangelicals fight for the right to share their beliefs, they're becoming more supportive of others, and not just those of other faiths, who feel silenced.
"There's been a pretty big improvement in the way evangelicals protect other people's right to free speech and participation in politics," Lewis said.
In 1976, evangelicals scored a 2.4 on the free speech scale, which Lewis devised using data from the General Social Survey. Members of this faith group were about as likely to want to silence speech by homosexuals, atheists, communists, militarists and racists as they were to be willing to allow it.
By 2014, that figure had increased to 3.5, which was only 0.3 points away from the score for non-evangelicals, Lewis found.
"There may be some learning about the rights of others that happens when you learn about your own rights. That would be a real win in our culture," he said.
Moore celebrates his community's growing support for others' speech, noting that people can't call themselves defenders of this right unless they defend it in all circumstances. He's shared similar thoughts about religious freedom, arguing that evangelical Christians cannot deny religious protections for Muslims if they claim them for themselves.
"Freedom of speech by definition cannot be freedom for only the speech that one finds inoffensive," Moore said.53 comments on this story
That commitment to free speech for all will be tested over the next few years, as the court's ruling in the Becerra case sparks new lawsuits. Now that pregnancy centers have a right not to share information about abortion services, abortion centers may challenge laws requiring them to share information about alternative options, as Justice Stephen Breyer argued in his dissent.
"There is no convincing reason to distinguish between information about adoption and information about abortion," Breyer wrote.
If evangelicals appear to have a double standard on free speech, it could hurt their cause, as Lewis wrote in a recent opinion piece for The New York Times.
"In the long run, the political effectiveness of conservative Christians' rights claims is likely to be affected by their commitment to the rights of others, too," he wrote.