Justice Kennedy Leaves With a Flourish

Readability

Justice Kennedy Leaves With a Flourish

Anthony Kennedy has announced that he will step down from the U.S. Supreme Court on July 31, after 30 years of ser­vice. He assured him­self a place in his­tory two years ago, for good or ill, with the Oberge­fell deci­sion. Aside from that, he earned a rep­u­ta­tion as a swing (i.e. unpre­dictable) vote on var­i­ous issues. One of those 54 deci­sions is on my mind today.

Yes­ter­day, the court ruled in NIFLA v. Becerra that pro-​life preg­nancy resource cen­ters (PRCs) can­not be forced to adver­tise for abor­tion. (I’ve been watch­ing that case ever since the lit­i­ga­tion began.)The same case ruled that non-​medical pro-​life PRCs can­not be com­pelled to announce their non-​medical nature in a man­ner pre­scribed by a pro-​abortion gov­ern­ment, when the same gov­ern­ment doesn’t impose that require­ment on sim­i­lar agencies.

Jus­tice Kennedy con­curred in the 54 NIFLA deci­sion writ­ten by Jus­tice Clarence Thomas. Kennedy’s con­cur­rence deserves more atten­tion than it’s likely to get this week, in light of his res­ig­na­tion and other SCO­TUS news.

NIFLA at its core was a First Amend­ment case: was the state of Cal­i­for­nia vio­lat­ing the First Amend­ment rights of pro-​life agen­cies by forc­ing those agen­cies to deliver pro-​abortion mes­sages? Jus­tice Thomas care­fully out­lined the rea­sons why the answer had to be Yes. It’s astound­ing that four Jus­tices would have let the Cal­i­for­nia law stand. (No sur­prises: the minor­ity con­sisted of Breyer, Gins­burg, Sotomayor, and Kagan.)

Here’s the bulk of Jus­tice Kennedy’s con­cur­rence (empha­sis added). Bear in mind that this man was not exactly a lion of the pro-​life move­ment. But the state of California’s attempt to coerce pro-​life preg­nancy cen­ters to help mar­ket for abor­tion was too much for him to stomach.

I join the Court’s opin­ion in all respects.

…It does appear that view­point dis­crim­i­na­tion is inher­ent in the design and struc­ture of this [Cal­i­for­nia] Act. This law is a par­a­dig­matic exam­ple of the seri­ous threat pre­sented when gov­ern­ment seeks to impose its own mes­sage in the place of indi­vid­ual speech, thought, and expres­sion. For here the State requires pri­mar­ily pro-​life preg­nancy cen­ters to pro­mote the State’s own pre­ferred mes­sage adver­tis­ing abor­tions. This com­pels indi­vid­u­als to con­tra­dict their most deeply held beliefs, beliefs grounded in basic philo­soph­i­cal, eth­i­cal, or reli­gious pre­cepts, or all of these.

And the his­tory of the Act’s pas­sage and its under­in­clu­sive appli­ca­tion sug­gest a real pos­si­bil­ity that these indi­vid­u­als were tar­geted because of their beliefs.

The Cal­i­for­nia Leg­is­la­ture included in its offi­cial his­tory the con­grat­u­la­tory state­ment that the Act was part of California’s legacy of “for­ward think­ing.” App. 3839. But it is not for­ward think­ing to force indi­vid­u­als to “be an instru­ment for fos­ter­ing pub­lic adher­ence to an ide­o­log­i­cal point of view [they] fin[d] unac­cept­able.” Woo­ley v.Maynard, 430 U. S. 705, 715 (1977). It is for­ward think­ing to begin by read­ing the First Amend­ment as rat­i­fied in 1791; to under­stand the his­tory of author­i­tar­ian gov­ern­ment as the Founders then knew it; to con­firm that his­tory since then shows how relent­less author­i­tar­ian regimes are in their attempts to sti­fle free speech; and to carry those lessons onward as we seek to pre­serve and teach the neces­sity of free­dom of speech for the gen­er­a­tions to come. Gov­ern­ments must not be allowed to force per­sons to express a mes­sage con­trary to their deep­est con­vic­tions. Free­dom of speech secures free­dom of thought and belief. This law imper­ils those liberties.

That’s not a bad way to cap off thirty years on the Court.

Ellen Kolb is a pro-​life writer and activist in New Hamp­shire. She writes at ellenkolb​.com and Leaven for the Loaf.

You can sup­port inde­pen­dent jour­nal­ism by hit­ting DaTip­Jar at DaT­e­chGuy Blog. Thank you!

Anthony Kennedy has announced that he will step down from the U.S. Supreme Court on July 31, after 30 years of service. He assured himself a place in history two years ago, for good or ill, with the Obergefell decision. Aside from that, he earned a reputation as a swing (i.e. unpredictable) vote on various issues. One of those 5-4 decisions is on my mind today.

Yesterday, the court ruled in NIFLA v. Becerra that pro-life pregnancy resource centers (PRCs) cannot be forced to advertise for abortion. (I’ve been watching that case ever since the litigation began.)The same case ruled that non-medical pro-life PRCs cannot be compelled to announce their non-medical nature in a manner prescribed by a pro-abortion government, when the same government doesn’t impose that requirement on similar agencies.

Justice Kennedy concurred in the 5-4 NIFLA decision written by Justice Clarence Thomas. Kennedy’s concurrence deserves more attention than it’s likely to get this week, in light of his resignation and other SCOTUS news.

NIFLA at its core was a First Amendment case: was the state of California violating the First Amendment rights of pro-life agencies by forcing those agencies to deliver pro-abortion messages? Justice Thomas carefully outlined the reasons why the answer had to be Yes. It’s astounding that four Justices would have let the California law stand. (No surprises: the minority consisted of Breyer, Ginsburg, Sotomayor, and Kagan.)

Here’s the bulk of Justice Kennedy’s concurrence (emphasis added). Bear in mind that this man was not exactly a lion of the pro-life movement. But the state of California’s attempt to coerce pro-life pregnancy centers to help market for abortion was too much for him to stomach.

I join the Court’s opinion in all respects.

…It does appear that viewpoint discrimination is inherent in the design and structure of this [California] Act. This law is a paradigmatic example of the serious threat presented when government seeks to impose its own message in the place of individual speech, thought, and expression. For here the State requires primarily pro-life pregnancy centers to promote the State’s own preferred message advertising abortions. This compels individuals to contradict their most deeply held beliefs, beliefs grounded in basic philosophical, ethical, or religious precepts, or all of these.

And the history of the Act’s passage and its underinclusive application suggest a real possibility that these individuals were targeted because of their beliefs.

The California Legislature included in its official history the congratulatory statement that the Act was part of California’s legacy of “forward thinking.” App. 38–39. But it is not forward thinking to force individuals to “be an instrument for fostering public adherence to an ideological point of view [they] fin[d] unacceptable.” Wooley v.Maynard, 430 U. S. 705, 715 (1977). It is forward thinking to begin by reading the First Amendment as ratified in 1791; to understand the history of authoritarian government as the Founders then knew it; to confirm that history since then shows how relentless authoritarian regimes are in their attempts to stifle free speech; and to carry those lessons onward as we seek to preserve and teach the necessity of freedom of speech for the generations to come. Governments must not be allowed to force persons to express a message contrary to their deepest convictions. Freedom of speech secures freedom of thought and belief. This law imperils those liberties.

That’s not a bad way to cap off thirty years on the Court.

Ellen Kolb is a pro-life writer and activist in New Hampshire. She writes at ellenkolb.com and Leaven for the Loaf. 

You can support independent journalism by hitting DaTipJar at DaTechGuy Blog. Thank you!