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Then came one of the most lyrical and stirring passages ever penned in defense of free speech: The real test of that freedom “is the right to differ as to things that touch the heart of the existing order.” “Freedom to differ is not limited to things that do not matter much,” Jackson wrote. In an epic decision, Justice Robert Jackson declared that the protection of conscience and the right of dissent went to the very core of the First Amendment - above all when the stakes were greatest.
Overruling its precedent, it struck down the West Virginia law as unconstitutional - not on the grounds of religious freedom but of free speech. The Supreme Court had previously upheld such laws as constitutional, but now it had a change of heart. It was against that background of intolerance that Walter Barnette, a Jehovah’s Witness from Charleston whose daughters had been expelled from school, challenged the flag-salute law in federal court. Individual believers were beaten, mutilated, or lynched.
Witnesses’ houses of worship, called Kingdom Halls, were burned. In some cases, the parents of such children were prosecuted for causing delinquency. Officials threatened to send them to juvenile reformatories. When children from Jehovah’s Witness families declined to salute the flag, they were expelled from school. But for Jehovah’s Witnesses, a nontraditional Christian sect, saluting the flag was not possible: According to their religious understanding, doing so was tantamount to idolatry. There was widespread, often vicious, hostility toward anyone unwilling to pledge their loyalty to the flag. Such mandates were popular - the nation was at war and patriotic sentiment was intense. Refusal to do so, the law stipulated, would be “regarded as an act of insubordination, and. In 1942, the State of West Virginia enacted a law requiring teachers and students in all public schools to regularly salute the American flag and recite the Pledge of Allegiance. Though the First Amendment was ratified in 1791, it was only 80 years ago that the Supreme Court began to grapple with such questions in earnest.
The state maintains, however, that she may not pick and choose: If she wishes to design websites for traditional weddings, she must be willing to do so for gay and lesbian weddings. Colorado acknowledges that she “will gladly create custom graphics and websites for gay, lesbian, or bisexual clients” and that she objects only to using her talents to create content that violates her religious beliefs. She opposes same-sex marriage on religious grounds and does not want to design websites promoting something she believes is wrong.
As Colorado officials interpret the law, if Smith offered her services for weddings between men and women, she could not lawfully refuse to do so for same-sex weddings. Under the Colorado Anti-Discrimination Act, such a business would be considered a “public accommodation,” which may not refuse to serve customers on the basis of sexual orientation. Lorie Smith is a graphic artist and Web designer in Colorado who wants to expand into the field of custom-made wedding websites.