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Dec. 6, 2022 - The Ben Shapiro Show
43:28
You Will Be Made To Celebrate | Ep. 1624
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The Supreme Court considers whether to force Americans to celebrate activity they consider sinful.
The White House makes its push for big tech censorship.
And moderate Republicans consider whether to give Democrats a deal on immigration.
I'm Ben Shapiro.
This is the Ben Shapiro Show.
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Well, the Supreme Court is taking up the question of same-sex marriage once again.
All of these questions follow hard upon the Supreme Court declaring in the Obergefell case, of course, that same-sex marriage must be elevated to the level of traditional marriage.
In fact, marriage must be redefined as not between a man and a woman.
for the purposes of producing children. Instead, marriage will now be defined as two people of any sex living together under the boundaries of the law, essentially. Monogamous, nom, not, doesn't really matter as long as it is two people of any sex. That is the new definition of marriage, according to Justice Anthony Kennedy and a 5-4 majority in the Obergefell case.
Well, this bears a lot of consequences because when you redefine marriage, this now raises questions as to how much are people allowed to act in accordance with their own viewpoints on marriage. Because once the Supreme Court has declared a redefinition of an institution as fundamental as marriage, and once the Supreme Court has also declared that same-sex marriage is on a par with traditional marriage and thus that anybody who does not believe that is in some sense a bigot, what exactly do you do with people who don't believe that?
Which, for nearly all of human history, was nearly all humans.
What exactly do you do with all the people who do not go along with the idea that two men or two women being married to one another is the same thing as a man being married to a woman?
What about religious people?
Or what about people who aren't religious?
Who just believe that, for example, society has more of a stake in men and women being married to one another than it does in two men living together or two women living together, which is obviously and patently true.
What exactly do you do with those people?
And this has now raised its head at the level of the Supreme Court.
So, the Supreme Court looks as though it is going to move along the lines of what has been called the Utah Compromise.
The Utah Compromise is set out in the state of Utah.
Essentially what it does, it creates a very strict non-discrimination law that includes things like sexual orientation.
And then it creates massive carve-outs for people of religious faith.
So basically what it says is, you are not allowed to quote-unquote discriminate against people who are gay or lesbian.
However, if you are a religious person, then we have a big religious carve-out for you, that you are allowed to act in accordance with your religion.
That seems to be the compromise the Supreme Court is going to draw.
However, is that going to be the long-term compromise that is accepted by the left?
Of course not.
Of course not.
The left will not be happy until you, personally, are celebrating all of the activities they deem to be good and useful.
That is the entire purpose of having government elevate same-sex marriage to the level of traditional marriage.
After all, the benefits of same-sex marriage have already been granted to same-sex couples under the law nearly everywhere across the country, with things like civil unions.
So why exactly was there a push to elevate this to the level of marriage?
It wasn't for legal purposes, it was because the government was supposed to be a god-like creation that now discerned what was good and what was evil, and anybody who crossed the government's view of what was good and what was evil must be punished by the great god of government.
What we have here is not actually a secular worldview contrasted with a religious worldview.
We actually have our two religious worldviews, a religious secularist worldview and a religious religious worldview, a traditional religious worldview.
And the secular religious worldview is imperialistic.
They believe that it is their job to make sure that you, in your life, approve of all the activities they say are good.
And they're going to use the power of the law as much as they can in order to compel you to believe these things.
Now, the Supreme Court is currently constituted and is not going to do that.
Likely 6-3, the Supreme Court is going to say that religious people are protected by the First Amendment to the Constitution of the United States, at least insofar as their creative practice of their art, for example.
However, what this case really highlights, there's a case before the Supreme Court right now that was heard yesterday in oral argument.
And this case was about a graphic designer in Colorado who's claiming a free speech right under the First Amendment to refuse to create websites celebrating same-sex weddings because of her Christian faith despite a state law that forbids discrimination based on sexual orientation.
This is basically a variation on the same case that we saw with Jack Phillips of Masterpiece Cake Shop.
Who refused to bake a cake for a gay wedding.
And then as soon as he refused to do that, and the Supreme Court said he's correct and okay in doing that, as soon as that happened, he was hit with, well, bake us a cake, a transgender celebration cake.
And now he finds himself back in front of the Colorado woke commissars.
Being forced into re-education programs.
This is the way that this battle is going to go.
This is why you can't redefine fundamental social institutions along the line of secularism without also mandating the rest of it.
There is no halfway solution here that the left is willing to accept.
Because what they really want out of all of this is not just tolerance and diversity.
What they actually want is celebration.
All of this ties into a broader belief about identity, which is that the true identity, the true you, is all of your sexual passions.
And it's not enough for other people to acknowledge that you have those sexual passions.
Those people must celebrate them, because otherwise they are denying your identity, and if they deny your identity, that is an act of discrimination, and it's an act of cruelty, it's an act of bigotry, and it means that you are bad, and you are mean, and you are doing, essentially, violence to them.
This is the philosophy that has taken over nearly all of the university system.
It has taken over at a lot of major companies.
And it is a philosophy that eventually will end up taking over in the law unless there is significant pushback from traditionally minded and frankly rational people in the United States who at the very least have to agree to some sort of compromise on this issue.
But there will be no compromise with the left.
But again, the entire goal here is celebration.
The entire goal here is you will be made to care.
You can say as much as you want because Again, people who are in favor of traditional marriage have been saying it for decades.
Do what you want in the privacy of your own home.
No one cares.
That's your business.
That's not enough for people.
That's not what they want.
What they want is for you to celebrate.
What they want is for you to bake the cake, bigot.
What they want is for you to create the website, bigot.
What they want is for you to have to change your viewpoint about what is right and wrong, about any sort of hierarchy of acceptable moral behavior in the sexual realm.
You're supposed to change all of that because they want you to change all of that.
And if you don't, they're going to say that you're tantamount to a bigot who believes that white people shouldn't marry black people, for example.
We'll get to more on this in just one second.
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Now all this is part and parcel of a couple of major movements that have happened in the United States.
One is the movement to obliterate the distinction between immutable characteristic and behavior.
Is a general philosophical distinction that has been completely obliterated in the United States.
So the comparison of sexual identity with race, for example, is completely specious.
It is not the same thing whatsoever.
The reason I say this is because race is in fact an immutable characteristic.
This is why everyone still today, despite all of our wokeness, everyone still laughs when Rachel Dolezal, a white lady, claims that she is black.
The reason everybody laughs is because that's absurd.
You cannot be a white person who is black.
That's not the way this works.
It's an immutable characteristic.
And if you discriminate, we have decided in the United States correctly, on the basis of race, this makes you a bigot.
If you discriminate on the basis of an immutable characteristic, Somebody is disabled and you discriminate based on their disability.
Not that they can't do the job, they're a person in a wheelchair, they can't be a firefighter.
But you say that a person in a wheelchair can't be a coder at Facebook or something.
We've decided that that is discrimination because that is discrimination, right?
That is not the same thing as sexual identity.
Why?
Because sexual identity is inherently internal.
It is a subjective feeling if you're talking about orientation.
And if you are talking about anything other than orientation, namely behavior, behavior is behavior.
Not the same thing as race.
A black person who likes classical music and reads Shakespeare at night is still a black person.
It does not make them white.
A gay person who is married to a woman and acts in straight ways sexually It's very difficult to explain how societally that is different from being a straight person.
This is the whole point.
The distinction between behavior and an immutable characteristic like race is very deeply drawn philosophically, but it's been completely obliterated in modern society where we say that it is exactly the same to say that somebody's sexual behavior is wrong as to say that somebody's race is wrong, right?
Those are not the same thing at all.
Say somebody's race is wrong, that makes you a bigot.
Say somebody's sexual behavior is wrong, that makes you a traditional moralist because behavior Throughout Western civilization has always been treated as a component of your capacity to make decisions about your own life.
And people can judge those decisions and whether those are good or bad.
Okay, so that is one distinction that has been completely obliterated.
The other distinction that's been completely obliterated is the distinction between state action and private action.
This is something that happened under the Civil Rights Act of 1965.
And you understand the temporary necessity for it.
In 1965, there was an attempt to Destroy segregation in the United States, correctly.
To destroy racial discrimination in the United States, correctly.
However, what the Civil Rights Act of 1965 did is a couple of separate things.
One, it said government can no longer discriminate because Jim Crow was, in fact, a government regime.
Jim Crow is a series of laws that existed in the states that mandated that restaurants, for example, have separate black and white areas.
In Alabama, there are actual laws on the books mandating that if you were going to build water fountains, you had to have a black water fountain and a white water fountain.
You had to have separate bathrooms.
You had to have different restaurants.
You had to have different components of the buses.
All of this was encoded in state law in Jim Crow states.
And so the Civil Rights Act came along and said, you can't do that anymore.
Correctly.
That is right.
First of all, it should have been unconstitutional for states to do that in the first place after the 14th Amendment.
Put that aside.
Civil Rights Act comes and obliterates that.
Fine.
Good.
That's exactly what the Civil Rights Act should have done.
Then the Civil Rights Act goes further.
And the Civil Rights Act says that individuals can no longer in their businesses discriminate.
Now, that is pretty clearly a violation of what the founders would have considered First Amendment freedoms.
Freedom of association, freedom of speech.
All of this would have been considered pretty basic freedom stuff.
Now, two things can be maintained at once, as always.
You can be free to discriminate, and also you can be a terrible person for discriminating.
Those two things hold together very easily, actually.
Freedom of speech applies to Nazis.
Nazis are evil.
They say evil, evil things.
They believe evil things.
The First Amendment still applies to them.
And so, Freedom does not mean that I approve of all the ways you use your freedom.
However, for the federal government to come in in 1965 and say that private persons, who are not the government, are now forbidden by law from discriminating in quote-unquote public accommodations, for example, is a violation of constitutional freedoms, even if you like the outcome of that.
And this is an argument that Barry Goldwater famously made in 1964.
And then he was ripped up and down because, again, people made the dishonest argument that if you are in favor of the freedom, this must mean that you like all the ways that the freedom is used, which, of course, is the road to fascism.
Because if you think that freedom is secondary on a governmental level, that freedom on a governmental level is secondary to how the freedom is used, meaning we only give you freedom if you use it in the ways that we approve, you don't actually have the freedom.
The government just gets to tell you what to do each and every day.
This is a point made by Christopher Caldwell in his book The Age of Entitlement.
There's been essentially a second constitutional bargain drawn by the Civil Rights Act of 1965 and the acts that came immediately afterward in terms of compelling private behavior that never would have been foreseen by anybody at the time of the founding or for most of Western history.
The idea that the government could force you into doing these things in your private life.
So when you conflate these two philosophical obliterations, the obliteration between immutable characteristic and behavior, and the obliteration between public and private, what you end up with is the government can tell you to do whatever it wants you to do.
And it can tell you that you're no longer allowed to quote-unquote discriminate on the basis of behavior.
This is how you end up with a full left-wing argument that the government is now going to redefine marriage, and the government is going to force you, the private actor, to actually discard your own principles and your own belief system in favor of approving of, not immutable characteristics, in favor of approving behavior.
Behavior that you don't think is good.
Behavior that you don't think is right.
Behavior that you may consider sinful.
Force you to participate in it and celebrate it using your artistic license.
This is the case that was made by three of the justices on the Supreme Court yesterday.
It's the case that is routinely made on the left.
According to the New York Times, several justices leaning in favor of the designer, there's a web designer again who says that she does not wish to use web designing skills to celebrate same-sex marriage, appear to be searching for limiting principles so as not to upend all sorts of anti-discrimination law.
But of course, this is the problem because the truth is anti-discrimination laws in many ways are unconstitutional.
Anti-discrimination laws You can be very much anti-discrimination and think discrimination is wrong and evil and bad and still believe that the government does not have the right to compel people to violate their own personal precepts on things like association.
Both of those things hold together very clearly.
The left likes to play this game, and they will play this game, right?
They'll take clips from this show today, and they will say that if I say that anti-discrimination laws are badly drawn and violate First Amendment freedoms, this means I'm in favor of discrimination.
Wrong.
I am in favor of freedom to decide what you do in your own life.
And if that means discrimination, yes, it protects discrimination.
Does that mean you're a good person?
No.
Does it mean that I hope that you'll run out of business?
Yes.
It's one of the beauties of the free market.
If there's a company today that says, I refuse to serve Jews, there'll be another company that says, I will serve Jews, and that company will out-compete the first company.
But the idea here is that because we redrew the constitutional bargain, we ended up with two mutually exclusive ideas.
One, the government can mandate behavior.
Two, the Constitution of the United States, the government cannot mandate behavior.
And these two things are not compatible.
And so there's been this awkward balance that the Supreme Court is attempting to draw where they say, well, the government can tell you that certain things you're not allowed to do, but if you're a religious person, maybe you could still do those things.
Or the government can tell you that you can do certain types of discrimination, but not other types of discrimination.
And the left correctly says, well, wait, hold up a second.
We already obliterated the Constitution.
It's done.
The Constitution is gone.
All that's left is an anti-discrimination rubric under which we get to decide what you can say and what you can do.
It is not a coincidence that the same people who are pushing to use Obergefell as a baton to wield against religious institutions and not only institutions, religious human beings on a personal level in their lives, because it turns out religious people aren't just religious in their churches or their synagogues.
I'm religious all throughout my life.
Religious people are religious all throughout their lives.
And as I've said before, the argument for traditional marriage does not rely on religion.
But now, basically, the Supreme Court is deciding, if you're a secular person, a person who doesn't go to church all that often, and you believe that traditional marriage is more important societally than same-sex marriage, so you don't wish to celebrate same-sex marriage, if you do that and you don't say the word God, then apparently the government can crack down on you.
But if you do say the word God, then the government cannot crack down on you.
This is an absurdity.
It's nothing like what the Constitution was written to do.
This also, by the way, goes to the heart of what the Bill of Rights originally was supposed to be.
There was a big argument when the Bill of Rights was drawn over whether to even draw a Bill of Rights.
The people who were in favor of the Bill of Rights said, we need to make very clear there are things that the government cannot do.
And people who opposed the Bill of Rights, they said, well, here is the problem.
What you are doing is you are creating little spheres where the government can't go.
But then the implication is the government can go everywhere those little spheres are not.
And so if you draw a Bill of Rights, what you're basically doing is you are carving out negative space against the encroachment of the government, but allowing the government to overrun everything else.
And that's not what the Bill of Rights was designed to do.
The people who opposed the Bill of Rights were actually very much in favor of what they called the Structural Constitution, meaning all the stuff in the Constitution before the Bill of Rights, which actually is the important part, meaning the government was never supposed to have the power, at least on the federal level, to do any of this stuff.
The federal government was never supposed to have the power to invade your business and tell you how to conduct your business in this way.
The founders would have appalled at that.
Nobody would have signed a constitution that was rooted in that notion.
And yet, of course, we've upended that entire balance.
And so now the left says, OK, well, we upended the balance.
The Constitution is no longer relevant.
We will have a full anti-discrimination regime that will tell you what to do and what to say.
And these are the same people who obviously believe that we should have things like hate speech laws that prevent you from using your First Amendment freedoms to say things they don't like because these do emotional damage.
Again, it's not a coincidence that all the people who want to control your life in terms of how you handle your business and how you handle your church and how you handle raising your kids also want to control your life in terms of how you speak.
It's very important to them that we do all of this because the bottom line is what they want is to be able to tell you what is good and what is bad.
It is a new moral writ brought down, not from a mountain.
Not brought down on a mount.
None of that sort of stuff.
Instead, the new moral writ is going to come from the hearts and minds of the most liberated among us, the people who are not subjected to the institutional predations of history and tradition.
Those people are going to bring a new set of tablets, and those tablets will be erected in every school in the country.
We won't have Ten Commandments.
That's bad.
We can't have that.
That'd be establishment of religion.
Instead, we'll have the new tablets, and it'll be things like the gay pride flag in classrooms, and it'll be things like same-sex marriage being taught to five-year-olds.
These will be the things that are very important and taught because it's a new religious mode, and you will be forced to accept this by the government.
This is what the left would like.
Because again, they're exploiting this gap that was created in 1965.
And again, you can make the case in 1965 that on a temporary basis, the federal government, as a practical matter, needed to be able to cudgel people away from bigotry.
You can make that case.
I don't make that case.
I think that the federal government was perfectly justified in going to the states and obliterating all of the segregation regimes that existed in the states.
I do not think that the federal government had the power constitutionally or morally or philosophically to compel individuals Not to engage in constitutionally protected behavior, even behavior I don't particularly like.
Like, for example, banning Jews at country clubs.
I'm a Jew.
Not in favor of banning Jews at country clubs.
I'm not in favor of banning black people from restaurants.
Do I think that the government, the federal government, had the power to compel the individual bed and breakfast owner to determine that the federal government could override that person's priorities in terms of who they had in their house?
No, I don't think the federal government had that power.
However, you could at least make the temporary moral case that this is something that had to be done in order to get over several centuries of blatant and evil racial discrimination.
You can make that case.
But the problem is that essentially that exception has now eaten the entire system of law and the left knows it.
And they are pushing this all the way to its limit.
And if it were not for a conservative Supreme Court majority, they would get what they want, which is to obliterate all traditional religion from the public square.
To shift it and mold it into basically a version of secularism with a tiny little cross on the side.
Maybe a little Jewish star over here.
And basically all of these secular precepts, except you say God once in a while.
And God can be a he or a she in this particular version.
We'll get to more on this in just one second.
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Brett Kavanaugh says the case comes down to a fairly narrow question.
Are they more like restaurants and jewelers and tailors in terms of the quote-unquote discrimination of the website owner?
Or are they more like, you know, the publishing houses and other free speech analogs?
Again, because of these incompatible legal principles, the Constitution and the Civil Rights Act, in terms of private behavior being mandated by the federal government, because these are incompatible, The Supreme Court is now having to come up with all sorts of other distinctions on the right.
The left is making a perfectly consistent case.
The Constitution no longer matters.
We get to tell you what to do.
The right is attempting to draw new distinctions.
So what are the philosophical distinctions that separate behavior that the government can compel, say, for example, non-bigotry racially from behavior the government cannot compel, say, religious behavior?
And so Brett Kavanaugh is trying to draw a distinction based on the kind of services that are provided.
So the idea here is that you violate Antony.
If you're a religious person, And you run a restaurant, and you decide as a restaurant that you just don't want to serve same-sex couples.
Is that discrimination?
Brett Kavanaugh would say yes, but if you are running a website that involves inherently creative service, these are very, very wavery lines.
As the left correctly points out, it is a wavery line.
The person who runs the restaurant undoubtedly believes they are engaging in a creative activity.
That is why they are engaged in the restaurant business.
If you're a jeweler and you make special jewelry for people, how is that wildly different from making special websites for people?
This is a very vague distinction that Brett Kavanaugh is attempting to draw.
I understand why he's attempting to do it, because he's attempting to redraw some sort of line that protects religious freedom.
But again, the history of American law suggests that the obliteration has already been done.
It's just a matter of how far the obliteration is going to go and how long it's going to take to get there.
Justice Neil Gorsuch focused on the difference between a client's message and that of the designer.
Gorsuch said, that's at the heart of this, is expressing the maker's point of view versus the couple's point of view.
So, is there a difference between, for example, serving a gay couple at a restaurant when they're not actually asking you to bake a cake for them, or baking a cake for them, right?
That's what Gorsuch is focused in on.
Amy Coney Barrett said, it's about the message, not about the sexuality of the couple.
So again, focusing in on sort of the message.
Samuel Alito says there's a difference between discrimination based on race versus sexual orientation, which is the actual correct answer here.
That goes back to the original obliteration that we talked about, the distinction between immutable characteristics and behavior that we have completely destroyed in our society.
But the reason these issues are being turned over in the first place is because of a grand constitutional violations that have taken place over the course of decades to completely redraw the balance between government and the individual.
That is why we are here.
Can you have imagined decades, forget decades ago, one decade ago, Would it be possible to imagine?
I did, because I suggested this was going to happen when the left enshrined same-sex marriage.
I wrote columns about this, saying this is exactly what was going to happen as early as 2012-2013.
Ten years ago, when you said to people, guys, if same-sex marriage becomes the law of the land, the next thing that will happen is an attempt to compel individuals to violate their own precepts.
And to celebrate behavior.
People are like, no, we don't want that.
Again, part of the slippery slope that was essentially inevitable from about the 1990s.
The slippery slope that went from leave us alone in our houses, to we want civil unions, to we want same-sex marriage, to we want to indoctrinate your children that all forms of sexual behavior are equivalent, and you have to celebrate this in your own personal life and business.
That slippery slope was pretty much inevitable, and some of us could see it coming and predicted it.
But that is where we currently are.
There's a piece in the New York Times that lays out full scale what exactly the left would like on this.
The National Legal Director of the ACLU, David Kohl, this just shows you, by the way, the hollowing out of the ACLU.
The ACLU, the American Civil Liberties Union.
It was about civil liberties, about civil rights, about freedom of speech, freedom of religion.
The ACLU, the same people who said that the Nazis had a right to march through Skokie, Illinois, right?
A very Jewish area.
They had a right to march there because that's what freedom of speech is all about.
Now the ACLU says, essentially, you must be forced to celebrate.
Quote, can an artist be compelled to create a website for an event she does not condone?
That's the question the Supreme Court has said it will take up on Monday.
The answer would seem to be obviously no, but that's the wrong question.
The right answer, the right question is whether someone who chooses to open a business to the public should have the right to turn away gay customers simply because the service she would provide for them is expressive or artistic.
So the real question is, should we force you to use your artistic abilities to celebrate a thing?
Now, again, as I say, I think that on a broad philosophical level, we shouldn't force anybody to have to provide services to anyone they don't want.
And this includes bad people.
This means that bad people will abuse that trust.
OK.
And then somebody who is not bad will open up a store across the street and hopefully run that person out of business.
I mean, that's sort of the way this works.
But the ACLU wants to be able to compel by law.
This is government as God.
There is no other way to put this.
It is government as God, the great arbiter of right and wrong, and it will compel you through power of law, materially, now, in a way that God does not even do.
It will compel you using all of the tools and powers at its disposal to worship at the altar of its morality.
Again, it's the head of the ACLU, the National Legal Director of the ACLU.
It's about civil liberties, and they're like, we don't care about civil liberties anymore.
We care about the gods of left-wing social morality.
Again, this is the idea.
The ACLU has been the nation's leading defender of free speech for more than a century.
We firmly believe states cannot compel artists or anyone else to express messages with which they disagree.
But we filed an amicus brief supporting Colorado in this case.
We defended the same law five years ago on behalf of the gay couple denied service by Masterpiece Cake Shop.
We did so because Colorado's law does not do what 303 Creative Claims does.
Public accommodations laws, which have been on the books since the 19th century, ensure that everyone has equal access to the public marketplace without regard to attributes historically marking them for second-class status.
Again, notice that obliteration.
Attributes historically marking them for second-class status.
No, it used to be applicable to immutable characteristics.
That was the actual phrase.
Now that phrase has been thrown out in favor of attributes historically marking them for second class status.
OK, well, you know, there are many attributes that historically mark people for second second class status.
If you're a polygamist, does the local bed and breakfast have to have you and your five wives in one room?
Is that something they have to do?
I mean, that would historically mark them as second class.
Presumably the ACLU would say, yes, the law would have to force you to do that.
Those laws don't trigger serious First Amendment concerns because they treat all businesses equally, whether they take corporate headshots or serve burgers and fries.
The purpose of the law is not to dictate the contents of anyone's speech, but to make sure nobody is denied goods or services in commercial markets for discriminatory reasons.
Well, again, the the obliteration, the creation of a new distinction between me providing my goods and services in my creative work every day with that guy over there who draws a picture.
I think that's a distinction without a difference.
I think it's a level of high-class arrogance to suggest that a guy who is a mechanic somehow is not using his creative faculties, but the guy down the street who's writing garbage poetry somehow is.
Or if you make a website that this is different in kind from a person who makes food.
Why?
You're going to have to explain.
The left is asking why and they're saying that the difference does not exist and therefore the government should be able to cram it down on everything.
I'm saying the reverse.
I'm saying the government never should have had the power to cram down this stuff on everybody.
Anti-discrimination laws are unconstitutional.
I may agree with the purpose of an anti-discrimination law, which is to presumably facilitate the end of bigotry by using force.
I am not friendly to the idea that government has that power.
Government does not have that power.
The fact that we have caved on this over the course of the last several decades and then draw a bunch of very weak distinctions in order to kind of shore up the internal structure, that is a structure that over time is not going to hold.
And you can see it in the questions that are being asked by the left.
So, for example, Ketanji Brown-Jackson, in the oral arguments, she says, well, how about a shop that only sells to Protestants?
How is that any different?
Now, again, you can make distinctions here.
But here is Ketanji Brown-Jackson asking the lawyer, Kristen Wagoner, for 303 Creative.
Speech is speech, whether it's paid or pro bono.
But don't we have cases that suggest that people's conduct can be expressive?
I thought there was a whole line of cases that said you didn't have to actually have an express message, you could be acting in such a way as to express a message.
And in my restaurant hypo, I'm saying if I sell to non-Protestants, I'd be expressing a message contrary to Grandma Helen's core beliefs.
You're speaking through conduct at that point, and that is a different analysis.
In terms of the expressive conduct test, the court has already articulated what those tests are and what a reasonable person would observe.
But in that case, you're talking essentially about status discrimination.
There's no message that she is creating that would be compelled in that way.
That would simply be service.
Okay, so the lawyer for 303 Creative, to decode that, is saying two things.
One, there's a distinction between expressive conduct and non-expressive conduct, meaning between 303 Creative's website designer using creative powers versus the restaurant owner who's just serving food to everybody.
And two, that there's a difference between saying, I will not serve a gay customer and saying, I will not celebrate a gay marriage.
You know, those logical distinctions may exist, but Ketanji Brown-Jackson is saying, why should they?
And it's not actually a horrible question by Ketanji Brown-Jackson, right?
Ketanji Brown-Jackson is saying, well, I mean, why should, why?
If you say that I cannot, two men walk in, they're married to each other, and they say, we want you to make us a cake that celebrates our marriage.
Why is that any different from them walking in and wanting to just buy a cake that doesn't celebrate their marriage?
Now, you can draw the distinction, But it seems to be expressive conduct in both ways, right?
I mean, begging a cake is an act of creative willpower.
In other words, I don't think that the left actually has a terrible case.
I think the left has a terrible principle.
And this is the problem.
Is that once the right has conceded many of the principles that the left wanted to push, that the government has the power to compel in these areas.
I do not think a Utah Compromise in the long term is possible.
I do not think the left will ever accept a Utah Compromise.
I also think that a Utah Compromise makes an admission against interest that is completely erroneous and specious.
A Utah Compromise suggesting broad anti-discrimination law but religious carve-outs essentially says the law is moral, religious people aren't.
That is not correct.
The law does not stand above traditional belief about marriage, and the redefinition of marriage is a direct conflict with not only traditional religious belief, but traditional belief generally.
Pretending that it isn't is inactive foolishness.
And again, eventually what will end up happening here is that anti-discrimination law will be broadened to include all of the categories that completely destroy traditional religious practice in this country.
The left is not going to stop any attempts to hold back those waters by building these very fragile legal dams.
It's going to be very difficult to maintain that over the course of time.
The only way to really defend traditional freedoms in these areas is to do two things.
One, minimize the power of government.
Government does not have these powers.
Regardless of what you believe about marriage, government should not have the power to compel this sort of stuff.
Period.
End of story.
That's one way.
And the other way is an aggressive defense of traditional marriage by people who actually believe in traditional marriage and who left the battlefield screaming with their hair on fire out of cowardice about 15, 20, 30 years ago.
If those two things don't happen, then the secular left push to take over the instruments of power and then use them to clobber anybody who they disagree with will continue.
That is a thing that will continue.
And you can see it in some of the conservative questions, that they can see which direction this is going.
We'll get to that in just a moment.
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Okay, so the left knows what they want, and what they want is complete dominance over your life.
Karine Jean-Pierre, World's Worst Press Secretary, she announced that yesterday.
She says that this case before the Supreme Court is really about ensuring that everybody gets the services that they want at any time from you.
I mean, that's really what it means, from you.
They're going to dictate what you must do with your business, with your life.
The right to free speech, and we support ensuring that no one is discriminated against or refused services because of who they love and who they are.
And so, as you know, we've been very clear about that.
The administration believes that every person, no matter their sex, race, religion, or who they love, should have the equal access to society, including access to products and services on the same terms as other members of public.
Again, notice the language here.
Equal access to society.
Equal access to goods and services.
Provided by whom?
By you.
I mean, individuals provide the goods and services.
They don't just sit out there somewhere on the street corner.
We're not talking about an actual publicly funded service that the government provides.
It must be applied equally.
What we're talking about, when they say goods and services in the social sphere, they mean you.
They mean that you should be forced to do whatever the government wants you to do.
Yamiche Alcindor, who is supposedly a journalist for NPR, but essentially is just a propaganda, a propagandist on behalf of the left.
She says that the web designer in 303 Creative is discriminatory and is looking to discriminate because this is what it's all about.
Katonji Brown Jackson asks, if you have a photographer who says, I want to take pictures and recreate the Christmases from the 1950s, and I say I only want to put white children with Santa and not black families, is that going to be allowed?
Now, the lawyers for Lori Smith say that there is a line in that line and that you can't compel anyone to have free speech that's related to something that goes against their personal convictions.
But in some ways, critics would say this is a very slippery slope.
You have civil rights groups who are saying what Lori Smith is really looking for is a license to discriminate.
Right, it's a slippery slope to First Amendment activity.
It's a slippery slope to people being able to make decisions the government doesn't love, or that I may not love, or that Yamiche Alcindor may not love.
But guess what?
That is called freedom, still.
People do bad things, and the government does not always have the compel, the power to compel people to do good things.
And that, by the way, is overall a good thing, because if the government has the power to compel everybody to do, quote-unquote, the right things, then that essentially means tyranny.
Because the right things, according to me, are not going to be the right things, according to Yamiche Alcindor, I would assume.
Well, the conservative justices, again, because they are attempting to both uphold anti-discrimination laws that are far too overbroad by Colorado's, and also to uphold a constitutional structure that essentially was overturned by a lot of these anti-discrimination laws, as again mentioned by Christopher Caldwell in Age of Enlightenment, because of that, they're kind of stuck between a rock and a hard place.
And they'll come up with a line here, and the line will be a line that's based on expressive conduct versus non-expressive conduct, or it'll be based on For example, immutable characteristics versus non-immutable characteristics.
Although I highly doubt they're going to touch that in the aftermath of Obergefell.
My guess is the line they're going to come down on is some sort of vague line about what constitutes expressive conduct versus non-expressive conduct or artistic performance versus non-artistic performance or whatever else the hell they come up with.
But everybody understands the consequences if the left gets its way.
So Justice Gorsuch says the consequences are basically that the government now gets to essentially re-educate everybody.
He says, you know, Jack Phillips in Masterpiece Cake Shop under Colorado's anti-discrimination law was essentially sent to a re-education program.
But here, they are defining their service by excluding someone based on their... That's their religious belief!
You can't change their religious belief, right?
And you protect religious beliefs under the statue, right?
That is one of the protecting characteristics, in theory.
And in practice.
If it wasn't in practice, we had heard about it over the past several years, and my friend has pointed to no example where this has been applied.
Mr. Phillips did go through a re-education training program pursuant to Colorado law, did he not, Mr. Olson?
He went through a process that ensured he was familiar with... It was a re-education program, right?
It was not a re-education program.
What do you call it?
It was a process to make sure he was familiar with Colorado law.
Ah, so a re-education program.
You know, Justice Alito, he points out, you know, guys, it turns out that you're conflating interracial marriage and same-sex marriage, which, by the way, the Senate of the United States, with the approval of 12 feckless Republicans, did the same thing.
They passed a bill enshrining same-sex marriage as federal law.
And in that bill, it also said interracial marriage, innately equating the two, which is absurd.
It is not a redefinition of marriage to include people of different races in man, woman, child.
That's not a redefinition of marriage.
In fact, for virtually all of human history, there has been racial mixing in the confines of marriage.
But here is Justice Alito questioning why the left is trying to conflate these two.
We know the answer, why they're trying to conflate these two, because again, they're obliterating the distinctions between immutable characteristics and behavior, between private and public behavior, all for the purposes of centralized government power over your life.
In light of what Justice Kennedy wrote in Obergefell about Honorable people who object to same-sex marriage, do you think it's fair to equate opposition to same-sex marriage with opposition to interracial marriage?
Yes, because in how the law applies, not in the discussion with folks, because of course honorable people have different views on this issue, but I think when you look at what Justice Kennedy said there, the way to honor that requirement is as this court has set forth in Fulton in Masterpiece of having a rigorous interrogation to make sure that there are neutral and generally applicable laws applied in fact
that way that don't single out religion.
Okay, again, what they're what the left is saying pretty openly here is that if you have a belief in traditional modes of sin and non sin, if you have any sort of belief that conflicts, forget about religion, if you have any sort of belief that conflicts with what the left wishes you to believe about anything.
And this means that they can force you to do what they want you to do.
And tomorrow, the left could put into law an anti-discrimination statute that says that you're not allowed to discriminate on the basis of environmental politics, for example.
And then, you're a corporation, and you're an oil corporation.
They say, well, if you don't do our bidding, this is discrimination on the basis of our environmental policy.
The left has no moral limits when it comes to this sort of stuff.
What limits will the left draw?
What limits when it comes to cracking down on free expression or freedom of association does the left draw?
The answer is none.
There are no limits.
It is whatever the left decides today is the rule, and that is the rule that everyone must live by.
And this is the inherent danger in giving this much power to government in the first place, no matter whether it was well-motivated, as it was, I'm sure, in the Civil Rights Act.
As I say, there's a big difference in the Civil Rights Act between provisions of the Civil Rights Act aimed at stopping government-sponsored discrimination, which should have been illegal in the first place.
Segregation should never have been legal in, for example, Plessy v. Ferguson, or whether you are attempting to reach into the private sphere and obliterate the rights of the individual guaranteed by the Bill of Rights in the name of an overarching anti-discrimination viewpoint that is largely rooted in a secular left-wing morality.
The Supreme Court is going to come down the right way on this case.
The warning that I'm giving you is that it will not always be this way.
And the reason it will not always be this way is because, inexorably, the logic of the left is more consistent here than the logic of the right.
The logic of the right is that you should be able to pick and choose.
The government should be able to pick and choose which sort of activities you get to engage in, but there are certain ones that you can, and there are certain ones that you can, and there are certain carve-outs, and there are certain not carve-outs, and the left just says, we control everything.
We control every bit of this, and we have the power to compel it.
That is what the left would like.
All right, guys, the rest of the show is continuing right now.
You're not going to want to miss it.
We'll be getting into why the left wishes to use big tech as its weapon.
Plus, we'll be taking your calls.
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