If you follow the history of cases involving freedom of speech, freedom of association and freedom of religion, you know that First Amendment liberalism can get pretty messy. Yes, follow First Amendment liberalism to its logical conclusions and you will end up with some pretty rough stuff, like American Civil Liberties Union lawyers backing the rights of neo-Nazis to march through a Chicago suburb full of Holocaust survivors.
More recently, in the Hosanna-Tabor Evangelical Lutheran Church and School v. Equal Employment Opportunity Commission case, the U.S. Supreme Court ruled -- on a 9-0 vote -- that doctrinally defined organizations have a right under the Free Exercise clause to select their own leaders and workers linked to ministry, broadly defined.
Ah, but what if a doctrinally defined group -- let's say an on-campus fellowship group in a law school -- wanted the right to discriminate against potential leaders who refuse to advocate the group's beliefs on marriage and sexuality? What if a Catholic school wanted to dismiss a religious-studies teacher who married his or her same-sex partner, in violation of 2,000 years of Catholic doctrine?
Like I said, things can get messy.
You can see these First Amendment issues lurking in the background in mainstream news coverage of legislation that is being proposed to protect religious believers and religious organizations in the wake of the 5-4 decision Obergefell decision backing same-sex marriage. Here's an interesting test: In coverage of the proposed First Amendment Defense Act, how quickly does the mainstream coverage you are reading mention the actual name of the bill? How clearly does it define its purpose?
This passage from a recent New York Times piece illustrates these struggles:
Legislation granting protections for tax-exempt organizations and individuals objecting to same-sex marriage on religious or moral grounds is gathering momentum in the House. The bills, drafted by Representative Raúl R. Labrador, Republican of Idaho, and Senator Mike Lee, Republican of Utah, already have 130 co-sponsors. ...
“All religious Americans deserve assurance that they can carry out their conscience without a federal government crackdown,” said Representative Bill Flores, Republican of Texas and the committee’s chairman.
At the same time, wary Republican moderates have quietly drafted a novel alternative that would actually expand legal protections for gay men and lesbians. Their legislation would narrow the scope of protection offered to groups declining services to same-sex couples seeking to marry.
If readers happen to click the tiny little hyperlink on the word "bills" they will find out, early in this news piece, that we are talking about H.R.2802, the First Amendment Defense Act. Much later in the piece, this legislation is called by its actual name. So this is not the "Partial-Birth Abortion" legislation journalism fiasco all over again. (Click here for the classic Kenneth Woodward essay about that era at The New York Times.)
However, journalists are wrestling with some pretty fine lines in covering First Amendment issues, lines that you can see in this Times story.
First, there is the line between the First Amendment, Free Exercise clause rights of average Americans (florists, perhaps) and those of non-profit, doctrinally defined organizations such as schools and hospitals.
Then there is the issue of whether it is acceptable to discriminate against gays and lesbians, period, and the right to decline service in cases that are clearly linked to events that would ask them to compromise their convictions on historic, articulated religious doctrines. This is the line between, let's say, refusing to sell flowers to gay customers as a rule or declining to provide flowers for a same-sex marriage rite. Sound relevant?
Now, read this Times piece closely and you can see that the editors are aware that these lines exist. However, you can also see that they, whenever possible, are anxious to remind readers that they people attempting to pass this legislation are Republicans, conservatives, supporters of "traditional" marriage (scare quotes mandatory) and folks whose highest priority is to oppose gay marriage, period.
There is no way to read the vast majority of these news stories and grasp that legislative efforts to protect the Free Exercise clause rights of citizens and/or doctrinally defined non-profit groups have in recent years drawn support from some First Amendment supporters who also back same-sex marriage. In other words, there is a (gasp) liberal case that can be made for messy, tense, offensive, but ultimately tolerant interpretations of the First Amendment.
Yes, this is a case in which labels matter and how issues are framed truly matter.
Journalists, here is how I have stated this labeling issue several times on this blog:
* What should journalists call someone who is weak when it comes to defending freedom of speech?
* What should journalists call someone who is weak when it comes to defending freedom of association?
* What should journalists call someone who is weak when it comes to defending freedom of religion?
My answer? I'm not sure what the correct answer is, these days, but anyone familiar with the history of political thought in the West will know that the correct answer is not "liberal."
So what do you call someone who is -- like it or not -- defending freedom of speech, freedom of association and freedom of religion? Well, right now it appears that these people are Republicans, conservatives, supporters of "traditional" marriage (scare quotes mandatory) and folks whose highest priority is to oppose gay marriage, period.
Really? Will journalists settle for that simplistic image of the current debates? Come on, scribes and editors, we can do better than that. Call up some old-school First Amendment liberals and you will find some interesting debates and divisions going on. You will find some very interesting news hooks.