Posted by Eugene Volokh:
Family Research Council on the *Okwedy v. Molinari Case:
http://volokh.com/archives/archive_2009_07_05-2009_07_11.shtml#1247344523
[1]This item also criticizes Judge Sotomayor for the panel decision
[2]that I note above. It at least acknowledges in the second paragraph
that the panel held for Okwedy on one issue, but nonetheless
concludes:
The case raises troubling issues. After all, the church was posting
a purely religious message with no statements regarding public
policy. The opinion suggests that Sotomayor may view the First
Amendment through the lenses of political correctness. Would a
billboard proclaiming "gay pride month," which is offensive to many
Christians, have been similarly treated? Sotomayor should be asked.
Setting aside Okwedy's claim that the Molinari letter was an implied
threat of government retaliation against the billboard company, which
would have violated the Free Speech Clause -- that's the issue on
which Sotomayor and the other judges held Okwedy should prevail, if he
could prove the factual underpinnings -- there's little troubling in
the panel decision. Government officials are entitled to criticize
people who oppose homosexuality (or support polygamy or advocate
pacifism or urge socialism), whether the people who are criticized are
making religious arguments or secular arguments. And that's true even
if the arguments simply quote the Bible; on matters such as these (I
set aside purely theological questions such as the nature of the
Trinity), moral beliefs have secular implications.
Religious speakers, like other speakers, have a right to be free from
coercive suppression of their speech. But they have no right to be
free from criticism of their speech (perhaps setting aside the purely
theological issues I noted above, as to which the government is
supposed to have no opinion). To the extent Molinari's actions might
have constituted coercive suppression, the panel rightly let Okwedy
try to prove that for his Free Speech Clause claim. But setting that
aside, the criticism of hostility towards homosexuality (whether
secular or religious) is not a constitutional violation.
References
1. http://www.frc.org/get.cfm?i=WA09G02
2. http://volokh.com/archives/archive_2009_07_05-2009_07_11.shtml#1247290779
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