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Same-Sex Marriage, 'Draw Muhammad,' and the First Amendment

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By Mark Wilson, Esq. on May 08, 2015 3:58 PM

The Supreme Court's oral arguments in Obergefell v. Hodges and the recent shootings at the "Draw Muhammad" contest in Texas have led to some pretty interesting theories about how the Constitution works.

In both cases, the interplay of religious liberty, free speech, and the rights of others concern some people out in the world who are afraid of same-sex marriage or of events that are designed to make people angry, like the Draw Muhammad contest. In both cases, however, the fear that the government can bring its hammer down on free expression is unwarranted.

Religious Colleges at Risk from Same-Sex Marriage?

Despite what Justice Scalia hinted at during oral arguments (and what Justice Kagan quickly shot down), no, Fox News, religious institutions aren't going to be compelled to endorse "non-traditional" marriage. (And priests aren't going to be required to perform same-sex marriages, either.)

Fox News quotes Travis Weber, director of the Family Research Council's Center for Religious Liberty, for the proposition that advocates of "traditional" marriage could face "fines, potentially imprisonment."

Except for a little thing called the First Amendment, which protects both religious expression, specifically, as well as expression in general. A finding that preventing same-sex couples from marrying violates the Equal Protection Clause would have no effect on a person's ability to advocate against same-sex marriage. Indeed, many religious institutions already denounce homosexuality, and they're not faced with the ridiculous prospect that the government is going to fine them, let alone imprison them, for their opinions.

Of course, the Supreme Court hasn't helped this problem by concluding that for-profit corporations have a right to religious expression. The real test of Obergefell and Hobby Lobby will come when a for-profit corporation refuses to extend employment benefits to a same-sex spouse.

Could a City Ban a "Draw Muhammad" Convention?

Some very conservative Muslims were shot and killed earlier this week as they attempted to violently disrupt a convention in Texas where participants were encouraged to draw depictions of the Islamic prophet Muhammad. Depicting him at all is forbidden under most interpretations of Islam, and the organizer of the event, Pamela Geller, is no fan of Muslims.

Even so, could a city ban such an event under the "fighting words" doctrine?

Probably not. "Fighting words" are limited to those utterances that would cause a reasonable person to immediately breach the peace. The Supreme Court narrowed this seemingly expansive doctrine in R.A.V. v. City of St. Paul, finding unconstitutional a city ordinance that purported to ban a litany of expression that could "arouse[] anger, alarm or resentment in others" based on "race, color, creed, religion or gender." Justice Scalia, along with a fractured majority (but a unanimous Court as to the judgment), determined that the restriction was content-based. Speech can't be forbidden as "fighting words" based its viewpoint or subject matter.

Especially concerning in the case of a ban on a "Draw Muhammad" contest would be the fact that, unlike traditional fighting words -- which have no speech value -- the contest arguably has value as political speech. Similar events have happened before, and the First Amendment has won. The Illinois Supreme Court famously upheld the right of American Nazis to parade through the predominantly Jewish city of Skokie, Illinois even though it was abundantly clear the Nazis just wanted to stir things up.

So, don't worry, folks, the government isn't coming for your rights -- even if your opinions are sometimes noxious.

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