By Carol Frenier
Supreme Court Justice Kennedy leaves behind a complex legacy. Some argue that his decisions have been inconsistent. Take, for example, Obergerfell v. Hodges on gay marriage and Masterpiece Cakeshop v. Colorado Civil Rights Commission — the case of the baker who declined to bake a wedding cake for a gay couple. The first upheld the right of gay and lesbian couples to marry and enjoy all the benefits thereof. The second scolded the Colorado Civil Rights Commission for its hostility to the baker’s religious belief that a marriage is between and man and a woman.
On the surface these two decisions seem inconsistent, but they actually share a common perspective. They both put restrictions on government interference with individual lives. In the case of gay marriage, the court ruled that government could not prohibit gays and lesbians from marrying. In the baker case, the court ruled that it was not the government’s business to maintain a point of view on whether gay marriage is good or bad.
Legally this is called “viewpoint discrimination” — new to me, but apparently not to the courts. In September 2017, Kevin Francis O’Neill explained what this means in the First Amendment Encyclopedia.
“If an ordinance banned all speech on the Iraq War, it would be a content-based regulation. But if the ordinance banned only speech that criticized the war, it would be a viewpoint-based regulation.
“Because the government is essentially taking sides in a debate when it engages in viewpoint discrimination, the Supreme Court has held viewpoint-based restrictions to be especially offensive to the First Amendment. Such restrictions are treated as presumptively unconstitutional.”
The Colorado Civil Rights Commission was guilty of viewpoint discrimination because it expressed contempt for the baker’s viewpoint but not for the viewpoint of other bakers who declined to make cakes for other reasons. Without realizing it, the commission conflated the rights of gay people under the law (to marry, to be served in a public restaurant, etc.) with the commission members’ personal beliefs that gay marriage was a good thing and that a Christian taking exception to that belief was guilty of discrimination. The court ruled that it was not the government’s prerogative to judge the validity of the baker’s viewpoint. Such a judgment was itself discrimination — viewpoint discrimination.
If the baker had treated the gay couple rudely, or refused to sell generic bakery products to them simply because they were gay, this would be a very different story. In fact, if the commission had ruled uniformly that a baker either had the right to decline to make a custom cake for any reason, or was required to make a custom cake for any reason, this could also have been a very different story.
So, how does viewpoint discrimination apply to other situations in our society? One clear possibility is our public schools. It is almost impossible for an educational system not to be guilty of viewpoint discrimination to some degree. Education is, after all, in the business of teaching about ideas. And ideas generate judgments and disagreements. In a time such as ours, with such intense political polarization, this becomes more pronounced and the source of serious tensions within the population.
People of a certain age only need to look back to the early 1960s to see an educational system that leaned right, complete with daily Bible readings and pledges of allegiance to the flag. I have heard some who remember that era actually say that at least one of Vermont’s independent schools was formed by parents who were not happy with the viewpoint of the schools of that time period.
Today, we are in the opposite situation. It might come as a surprise to liberal parents, for example, that conservative parents object to their children being taught to disrespect their country and the capitalist system that built it, or to treat climate change as dogma rather than debatable theory, or to believe that gender fluidity is a reality not subject to legitimate disagreement, and that sexual self-expression is the pinnacle of freedom. Keep in mind that disagreeing with today’s prevailing views routinely gets you labeled a bigot, just as it got you labeled un-American in the 1950s.
This tendency toward viewpoint discrimination in schools is actually one of the best arguments for school choice. School choice would allow parents and communities to reclaim control over content in their schools. It might also allow schools to refocus on the more politically neutral areas of core knowledge: literacy, numeracy, history and civics, science, and the arts — all those subjects that are so watered down and diffused in current curricula, and which parents so want for their children as they enter the real world of work and higher education.
Carol Frenier is a business owner living in Chelsea, Vermont, and the chair of the Orange County Republican Committee.