Distinguish between these two situations:
♦ Claiming their First Amendment right to free expression is being violated, professional football players, under pressure from the federal government, face fines for refusing to stand during the National Anthem.
♦ Claiming his First Amendment right to free expression is being violated, a professional baker, under pressure from the federal government, is fined for refusing to bake a wedding cake for a same-sex couple.
The constitutional claims sound similar, but they exemplify the stark differences in partisan America. More than 70 percent of Republicans oppose the football players’ stance, and two-thirds are on the side of the baker. Only 7 percent of Democrats agree with President Trump that football players should be forced to stand, and more than 70 percent say the baker should have to bake the cake.
The Trump administration, with an unerring instinct to cater to its base, had no problem deciding where it stands. The solicitor general filed a brief on behalf of Masterpiece Bakeshop in a case that is expected to be decided any day now by the U.S. Supreme Court. The brief argues that forcing bakery owner Jack Phillips to celebrate a same-sex marriage by designing a wedding cake violates his First Amendment rights.
But when the National Football League announced a no-kneeling policy last week, Trump said that not only should players stand up for the Anthem, they should have to stand “proudly.” If not, “you shouldn’t be playing; you shouldn’t be there,” he said. “Maybe you shouldn’t be in the country.”
Both disputes revolve around the right not to speak. The baker says he is an artist whose work is an expression of his religious beliefs, and same-sex marriage violates those beliefs. The football players say they can’t stand proudly when American citizens continue to be victimized by racism and violence.
The Masterpiece case is generally viewed as a religious freedom case, but both Phillips and the Trump administration are focusing in large part on free speech. That’s probably a good idea because the religious case is weak. A brief filed by gay rights groups said they had collected more than a thousand instances of discrimination against gays, lesbians and transgender people, including cases involving medical care, accounting, lodging, barber shops, beauty salons, restaurants and transportation, among many others. In one case, a gay couple was forced out of a cab and onto an expressway during a rainstorm for the offense of kissing in the back seat.
Jesus had very little to say about homosexuality, but he had a lot to say about how we should treat our neighbors. Whatever their fate in the afterlife, members of the LGBTQ community certainly deserve fair treatment here on earth. Besides, if Christians are obliged to withhold wedding cakes from same-sex couples, then why not from divorcees, adulterers, gluttons and the rest of us sinners?
Of course, my opinion about the theological merits of the baker’s case don’t matter. His religious beliefs are being challenged, not mine. Nor does my opinion about honoring the flag matter; if the flag stands for anything, it stands for the right to hold unpopular beliefs.
One difference between the baker and the football players that may not make much difference is that the Masterpiece case involves a government prohibition against discrimination. The NFL is a private enterprise that fires and fines players all of the time for all sorts of reasons.
But Benjamin Sachs, a professor at Harvard Law School, argues that NFL players might have a strong legal case against their employer. For one thing, NFL players have a collective bargaining agreement that does not require them to stand. For another, state laws often prohibit firing employees for protesting matters of public policy.
Finally, Trump has been known to retaliate against private enterprises that displease him, such as Jeff Bezos of Amazon.com, who also owns the Washington Post. A lawyer for NFL players could have fun arguing that the president’s small but heavy hand is forcing players to engage in speech they oppose.
Of course, players who don’t want to stand for the National Anthem could always go get other jobs. They all went to college, didn’t they? And Phillips could just get out of the cake business. But, as Rick Garnett has argued at the respected Scotusblog, “to condition the lawful exercise of his chosen profession on the waiver not only of unfettered freedom of contract but also of the First Amendment right to express – or not – his religiously informed views seems to ask too much. Such a demand crosses over from ensuring access to imposing orthodoxy, from enriching civil society to homogenizing it.”
Besides, democracy is at risk when keeping a job depends on suppressing political beliefs. If I go to a game and recognize a Walmart employee kneeling during the National Anthem, should Walmart fire that worker to avoid offending me?
Unfortunately, many people probably have formed their opinions about these cases less on the law than on their opinions about the conduct. If you care more about the “Star-Spangled Banner” than you do about gay rights, you probably back the baker and oppose the players. And vice versa.
As far back as 2013, law professor Doug Laycock argued that polarization over sex-related issues was keeping conservatives and liberals apart.
“What one side views as a grave evil, the other side views as a fundamental human right,” he said.
Dahlia Lithwick, who writes about legal issues for Slate, agreed.
“There is one team, and there is another team, and there’s almost no language to talk to one another,” she said.
Perhaps one way to find that common language would be for those on both sides of these issues to set their ideological preferences aside and focus instead on what the Constitution says.