There is an obvious flaw, however, with one of the asserted justifications for Colorado’s law. According to the individual respondents, Colorado can compel Phillips’ speech to prevent him from ‘denigrating the dignity’ of same-sex couples, ‘asserting their inferiority,’ and subjecting them to ‘humiliation, frustration, and embarrassment.’ These justifications are completely foreign to our free-speech jurisprudence. States cannot punish protected speech because some group finds it offensive, hurtful, stigmatic, unreasonable, or undignified. If there is a bedrock principle underlying the First Amendment, it is that the government may not prohibit the expression of an idea simply because society finds the idea itself offensive or disagreeable. A contrary rule would allow the government to stamp out virtually any speech at will.
“In ‘Obergefell,’ I warned that the Court’s decision would inevitably come into conflict with religious liberty, as individuals are confronted with demands to participate in and endorse civil marriages between same-sex couples. This case proves that the conflict has already emerged. Because the Court’s decision vindicates Phillips’ right to free exercise, it seems that religious liberty has lived to fight another day. But, in future cases, the freedom of speech could be essential to preventing ‘Obergefell’ from being used to stamp out every vestige of dissent and vilify Americans who are unwilling to assent to the new orthodoxy. If that freedom is to maintain its vitality, reasoning like the Colorado Court of Appeals’ must be rejected.”
Thomas doesn’t go far enough, of course. What the law should protect… Read the rest