Supreme Court Faces Wave of Free-Speech Cases from Conservatives

David Savage, Los Angeles Times, March 20, 2014

For decades, liberals wielded the 1st Amendment to protect antiwar activists, civil rights protesters and government whistle-blowers.

These days, however, the Constitution’s protection for free speech and religious liberty has become the weapon of choice for conservatives.

This year’s Supreme Court term features an unusual array of potentially powerful 1st Amendment claims, all of them coming from groups on the right.

And in nearly every case, liberal groups—often in alliance with the Obama administration—are taking the opposing side, supporting state and federal laws that have come under attack for infringing upon the rights of conservatives.

The free-speech challenges include cases on campaign contribution limits, no-protest zones in front of abortion clinics and mandatory union dues for public employees.

At the same time, devout Christian employers are claiming their religious liberty should entitle them to an exemption from a provision in President Obama’s healthcare law requiring that full contraceptive coverage be offered to female employees.

And waiting on deck is a free-speech appeal from a Christian photography company challenging a New Mexico state law that bars businesses from discriminating against gays and lesbians.

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A key test of the court’s leanings will come later this month, when the justices meet behind closed doors to decide whether to hear a challenge to New Mexico’s law forbidding discrimination based on sexual orientation.

The case began when Elaine and Jonathan Huguenin, the owners of Elane Photography, refused a request to photograph a wedding of two women. Elaine Huguenin said she did only “traditional weddings,” explaining that to do otherwise would violate her religious beliefs.

In response to a complaint, the state Human Rights Commission charged Elane Photography with violating the state’s antidiscrimination law. The photographers appealed and lost before the state Supreme Court.

In November, the Alliance Defending Freedom, an Arizona-based legal group that advocates for religious liberty, appealed on the photographers’ behalf to the Supreme Court. The group asked the justices to decide whether it violated the 1st Amendment for a state to “require a photographer to create expressions, images and picture books conveying messages that conflict with her religious beliefs.”

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If four or more justices vote to decide the issue, the case will be heard in the fall.

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