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Reimagining the First Amendment:
Sen. Tammy Baldwin (D-Wis.) says the 1st Amendment’s religious liberty protections don’t apply to individuals.
On MSNBC last week, Wisconsin’s junior Senator claimed that the Constitution’s protection of the free exercise of religion extends only to religious institutions, and that individual’s do not have a right to the free exercise of their own religion.
The exact quote form Senator Baldwin is somewhat less dramatic but more worrisome:
Certainly the first amendment says that in institutions of faith that there is absolute power to, you know, to observe deeply held religious beliefs. But I don’t think it extends far beyond that. We’ve seen the set of arguments play out in issues such as access to contraception. Should it be the individual pharmacist whose religious beliefs guides whether a prescription is filled, or in this context, they’re talking about expanding this far beyond our churches and synagogues to businesses and individuals across this country. I think there are clear limits that have been set in other contexts and we ought to abide by those in this new context across America.
So you can have freedom of religion in Sen. Baldwin’s America, you just have avoid talking about your religious views in public. It’s a definition of freedom so narrow it could easily fit within the confines of an authoritarian state. Even the nominally communist oligarchs who rule China don’t really care what you think, so long as you don’t offend the party with your words.
What is being established, under the cover of the gay marriage debate, is a new set of hate crime laws directed at Americans of faith. The Left has done a superb job of framing this issue as one about the rights of homosexuals. This automatically paints any critics as bigots regardless of their personal values or beliefs. Once the dust settles gay marriage will be an established legal and cultural fact. What will become apparent shortly thereafter is that freedom of speech has been dramatically narrowed in modern America.
The issue here isn’t about gay marriage. It has nothing to do with baking a cake or providing contraceptives. The vital issue is freedom of speech. If the pharmacist cited in Sen. Baldwin’s example refuses to fill a prescription, but does not say why, then he cannot be convicted of this new type of hate crime. However if the pharmacist refuses to fill out a prescription, but truthfully says he does so on religious grounds, then he has committed a hate crime. The expression of an idea is being punished, not the action or inaction of the participants.
Sen. Baldwin’s fictional pharmacist, along with the cake bakers of Oregon, are now to be guilty of thought crimes. Once that wedge has been established in First Amendment jurisprudence other forms of freedom of speech will follow. Each step along the way, the cry of “fighting bigotry” will be raised. Note the remarkable speed with which the Confederate flag became a political third rail. That rapid and ruthless process will soon be repeated on symbols, words and ideas far less historically contentious.
Much of this debate will hinge on the deliberately vague term “hate crime.” Since hate is a subjective emotion anything can be deemed hateful or offensive. The very idea of a hate crime makes a mockery of the rule of law. If consistently implemented it would transform America into a government of neurotic men instead of objectively definable laws. Yet the popular perception of “hate crime” is of a violent act motivated by bigotry.
This bait-and-switch was practiced in Canada for decades. The regime of soft censorship which emerged eventually culminated in the prosecution of Ezra Levant and Mark Steyn. Levant, a well known conservative writer and publisher, was prosecuted for three years for publishing the notorious Danish cartoons in a magazine he once owned. Mark Steyn went through similar travails over an article entitled The Future Belongs to Islam.
Both prosecutions were carried out under Canada’s hate crime laws; Levant being pursued by the Alberta Human Rights Commission and Steyn by both its Ontario and federal counterparts. In the end both Steyn and Levant were victorious and the powers of these commissions greatly curtailed. But it was touch-and-go at times.
In the early years of Canada’s hate crime laws they were mainly used to prosecute a small collection of derelict neo-Nazis, white supremacists, and holocaust deniers. Having vanquished such grave threats to the peace and security of Canada the country’s Human Rights Commissions suddenly became important. Over the span of a few years, these commissions were easily manipulated by a tiny group of activists to silence mainstream conservative critiques of Islamist ideology.
What was done north of the 49th parallel in the name of fighting Islamophobia will, in due time, be attempted further south under the rubric of fighting anti-homosexual bigotry. The obvious target will be America’s most vocal Christian churches. The tactics change but the ultimate goal remains the same: To established an informal system of censorship in traditionally free societies.
Don’t for a moment believe that the First Amendment is a firewall. Constitutions are no stronger or better than the people who interpret them. Your freedom of speech rests not on the wisdom of the Founders but on the caprice of Justice Anthony Kennedy and the political intriguing of Chief Justice John Roberts.
Hopefully in the battle ahead America will have no shortage of fighters like Ezra Levant and Mark Steyn.