A Tutorial on Freedom from the Supreme Court
Two common-sense rulings from the Supreme Court uphold core principles of American democracy and law.
If there were two lessons from the high school civics class most Americans seemed to have skipped that should be learned now, they are: Rights are for everyone and free speech sometimes protects speech you don’t like yourself. Luckily, the Supreme Court recently offered America tutorials on both topics.
In Students for Fair Admissions, Inc. v. President & Fellows of Harvard College and Students for Fair Admissions, Inc. v. University of North Carolina the Court made the common-sense ruling that discrimination against some races is a poor way to fix discrimination against other races. What woke mind could have possibly conceived that the 14th Amendment’s establishment of equal protection under the law meant treating a large portion of the population unfairly at the expense of another?
Starting back with 1979’s Bakke, which was largely reaffirmed by the Supreme Court in 2003’s Grutter, America’s higher education institutions decided to fix systemic racism in America by offering preferential treatment by race; white and Asian students were considered less deserving of a good education at, say, Harvard, and had to sit out the Ivy League so that some black and Latino kids could take their places.
The word for this back in the day was not racism (which it was) but “affirmative action.” It would right wrongs. This “reverse discrimination” was allowed through some clever word play because its goal of a diverse student body was considered a “compelling state interest” that overshadowed other compelling interests, such as equal protection under the law. It was sanctioned by the Supreme Court of its day, but only as a temporary solution; Justice Sarah Day O'Connor in one of the key cases upholding affirmative action wrote, “We expect that twenty-five years from now, the use of racial preferences will no longer be necessary to further the interest approved today.”
It didn’t seem to work, short- or long-term, in significantly changing society—at least, if the racial justice activists of 2023 are to be believed. Decades of pushing aside white and Asian kids for black and Latino kids did not seem to improve society noticeably, notwithstanding individual success stories.
“When affirmative action was conceptualized, it was to right past wrongs,” one commentator said. “Then, it became sort of endless. It wasn’t just African Americans. It was Native Americans and Hispanics. And then it was women, LGBT, etc., and that wiped out the moral imperative of it a little, because diversity is not quite as strong a claim as correcting past wrongs.”
There were other problems. Letting someone into Harvard is not the same as him succeeding at Harvard. If some program had sent me to an Ivy school at age 18, I would have failed miserably, coming out of a non-rigorous but nice enough Ohio high school where upon graduation I had neither read one classic book nor written one proper research paper. I think Harvard expects you to know that kind of thing and, white as I am, I would have floundered. I’m sure they have some sort of remedial program for their unqualified students but it seems unlikely to make up for many years of half-hearted education before it. And that exposes another dirty little secret about why affirmative action failed: America is divided primarily by class, not race.
America’s second recent high school civics lesson from the Court: You as an individual may not like everything other people use their freedom of speech to say and do. In fact, their deeply held beliefs may run 180 degrees away from yours: This is the whole point of the First Amendment free speech clause and it was on display in another recent Supreme Court decision, 303 Creative v. Elenis.
In the case, one web designer, wanted to know what would happen if she refused to produce a hypothetical celebratory wedding page for a gay couple, claiming her religion did not allow her to support same-sex marriage. The couple would have sued, because of course they would, probably claiming a part of a protected class by sex in Colorado.
Lower courts had weighed in favor in other cases, claiming various cake makers, florists, and web designers must be forced to practice their craft (i.e., their expression, their speech) to avoid LGBT discrimination. It was as if one side had more rights than the other; the logic would have resulted in the government of the United States using the threat of arrest or fine to force the web designer to produce speech to which she was opposed.
That's a big no-no in a democracy, compelling speech.
Though the state can demand businesses provide goods and services to all customers in protected categories, it cannot demand individuals engage in speech proclaiming messages that they oppose, such as in web page design. In Associate Justice Samuel Alito’s words, a win for the state of Colorado would mean some businesses that provide custom speech for customers could be forced to “espouse things they loathe.”
This all goes back to 1943’s West Virginia Board of Education v. Barnette when during WWII the Supreme Court held West Virginia could not make Jehovah’s Witness students pledge allegiance to the flag. The decision contained arguably the most famous finding in American First Amendment law: “If there is any fixed star in our constitutional constellation, it is that no official, high or petty, can prescribe what shall be orthodox in politics, nationalism, religion, or other matters of opinion, or force citizens to confess by word or act their faith therein.” The key finding in 303 Creative is that the designer is not denying a service to a protected class but instead refusing to engage in speech because she disagreed with its message. (Masterpiece Cakeshop failed to yield a definitive ruling and is not relevant here.)
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Despite all the hubbub, the Court correctly applied the broader civics class way of thinking in 2023, focusing on the First Amendment speech clause, and said nothing directly about the more contentious and limited religious aspect of all this, and passed on 2023’s wokeist definition of discrimination. Had the recent case involved a Jehovah’s Witness’s web page and not something to do with gay rights, you would barely have heard of the matter even though the real significance would have been about the same.
It's easy to forget most of what you heard in high school, especially in a one-off class like civics. But common sense can get you a long way. It is easy to write off the Court's decision in Students for Fair Admissions as discriminatory, with only a little thought that what it does away with—affirmative action—is discriminatory as heck. Same for 303 Creative v. Elenis, which is being promoted by the MSM as anti-LGBT when in fact it is an example of how robust our First Amendment is.
At the Founding no one could have conceived of a free speech battle between a web designer and gay clients, but that is what the First Amendment expanded to take in. The Supreme Court has not gone rogue, and democracy is not in danger. These two recent cases prove the system is flexible for the times and robust in defending the most basic freedoms a democracy is built upon.