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Against the ‘Coercive Elimination of Dissent’

November 16, 2018
Wedding cakes at a bakery in West Hollywood, Calif., in 2008. (Mario Anzuoni/Reuters)

By: Jeremy Dys & Mike Berry, Deputy General Counsel

Another wedding-cake case, this time in Oregon, where the state has punished two bakers for their refusal to lend their services to a same-sex wedding.

Americans are grappling with how to integrate the political popularity of same-sex marriage with increasingly unpopular religious expression. “Popular religious views are easy enough to defend,” Justice Neil Gorsuch observed in his concurring opinion in Masterpiece Cakeshop, Ltd. v. Colorado Civil Rights Commission. “It is in protecting unpopular religious beliefs that we prove this country’s commitment to serving as a refuge for religious freedom.”

This isn’t the first popularity contest our country has witnessed. An example from our mid-century experience provides a valuable lesson on this latest challenge to free speech. In 1935, a Pennsylvania public high school expelled Lillian and William Gobitis for refusing to salute the flag. In 1940, eight of the nine justices of the United States Supreme Court upheld their expulsion as necessary to national unity as “the basis for national security.”

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