The Redefinition Of “Free Exercise”

When one judge asked whether an oil painter had to create a painting celebrating same-sex marriage, an ACLU lawyer replied yes, Tedesco noted.

“And if they don’t want to have to do that, then they can close down their business and just paint on the side.”

—Ken McIntyre, “Christian Baker Makes Case for Not ‘Expressing’ Support of Same-Sex Marriage”


  1. In the past, the ACLU used to stand for something. Even for Nazis marching in Skokie, IL. Roger Baldwin would have been scandalized to hear an argument like that from one of his lawyers.

  2. We need a test case to get to the supreme court so Kennedy et al can put their money where their mouth is and provide meaningful protections for businesses to peacably not participate in gay marriage.

  3. Artistic persons, whether they be painters, sculptors, writers, actors or whatever have two time-honoured ways of doing business: creating their own self-initiated artistic creations or accepting commissions. If one reads material for artists, it is implied that an artist is free to accept a commission or not. Lots of artists are very choosy as to what they accept. Actors have scripts sent them and they turn down any they dislike for entirely personal reasons. If a Hollywood actor chooses not to accept a part as a transsexual minister conducting a gay wedding, are the ACLU going to go after him/her?

  4. The free exercise clause has always been interpreted narrowly. Read Scalia’s opinion in Employment Division v. Smith. “The only decisions in which this Court has held that the First Amendment bars application of a neutral, generally applicable law to religiously motivated action are distinguished on the ground that they involved not the Free Exercise Clause alone, but that Clause in conjunction with other constitutional protections.” I think it is much better to rely on the free speech clause. The courts take a dim view of compelled speech.

  5. It has been been interpreted narrowly since the first case that addressed it and since the founding era. If anything, it has moved to being slightly less narrow in the second half of the 20th century (until Smith, but then restored with RFRA). The broadest it has ever been interpreted still allows burdening free exercise as long as there is a compelling government interest and the law is narrowly tailored towards that end. The only reason we haven’t noticed until now is because we usually craft our laws with religious exemptions for Christian practices in mind, but there is nothing in the Constitution that requires that sort of bias. We haven’t been terribly interested in the religious liberty claims of polygamists to marry multiple wives or for Jehovah’s Witnesses not to have to say the Pledge or for a native’s freedom to consume peyote as part of a religious ritual. As Scalia (with Rehnquist) quotes approvingly in Smith, “‘Laws,’ we said, ‘are made for the government of actions, and while they cannot interfere with mere religious belief and opinions, they may with practices. . . . Can a man excuse his practices to the contrary because of his religious belief? To permit this would be to make the professed doctrines of religious belief superior to the law of the land, and in effect to permit every citizen to become a law unto himself.'”

  6. In this quote by Ken McIntyre, why is the judge asking for the ACLU lawyer’s opinion?

    How is it that the lawyer answers as though he is a judge?

    We are a nation untethered from facts, law, and truth.

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