Supreme Court Hands Pro-Life Clinics 5-4 Victory and Paves Way to Strike Down West Virginia’s Unconstitutional City Ordinances on Sexuality

Several months ago the Family Policy Council signed onto a legal brief, an amicus brief (or a friend of the court brief,) for a U.S. Supreme Court case between a number of pro-life, pro-first Amendment groups and the State of California. The case is,  National Institute of Family and Life Advocates (NIFLA) vs The State of California. At issue, California passed a law in 2016 requiring all crisis pregnancy clinics, even the ones that are church-owned or faith-based, to refer young women in trouble for government-funded abortions.

Family Policy Council of West Virginia, President Allen Whitt, traveled to Washington and rallied with hundreds of others this past January on the steps of the Supreme Court, as this case was being argued by our allied attorneys.
Today in a 5-4 decision, the Supreme Court defended the First Amendment rights of free speech and the right of religious expression and ruled in favor of our plaintiff, NIFLA. This is an enormous victory that will impact not only today’s pro-life case but many, many other cases involving government overreaching to force ungodly behavior upon faithful citizens.
Yesterday the Court also agreed to hear the case of our Christian flower shop owner,  Barrronnelle Stutzman, in Arlene’s Flowers vs The State of Washington. The Court then immediately vacated the wrong-headed decision against Mrs. Stutzman by the state court of Washington, and sent the case back to them to rehear it later this year.
But this time Washington must also consider the recent new legal precedents handed down from the U.S. Supreme Court in the Colorado cake-baker case, Masterpiece Cakeshop vs Colorado. That decision upheld free speech for a religious business owner who could not participate in a same-sex religious ceremony without violating his religious conscience. The Court basically said that Colorado was mean to him and used animus in their decision to force him to participate in that event.
So the Washington State Supreme Court must also consider today’s decision, NIFLA vs California which also upheld free speech and freedom of religion, when they re-hear Mrs. Stutman’s case.
Read Justice Kennedy’s words here as he concurred with the 5-4 victory today:
“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.” – Justice Anthony Kennedy

Justice Kennedy’s words here are a tremendous victory for the pro-life movement. It’s a victory against the overreach of government attempting to force pro-abortion messaging into the mouths of citizens.  But Kennedy’s words should also have an impact on Barronnell Stutzman’s case.

Now let’s be realistic, the Washington State Supreme Court is comprised of nine Democrats and they likely will ignore the Supreme Court’s directions.
But Kennedy’s bold free speech language in today’s NIFLA decision infers a broader message towards the members of that court. 
-Washington, if you ignore these new guidelines set forth by the highest Court in the land you do so at your own professional peril. If you again rule against Mrs. Stutzman and continue to act with prejudice against her rights of free speech and freedom of religious expression, then on appeal we will embarrass you. If there is a next time where you force we of the Supreme Court of the United States to hear Mrs. Stutzman’s appeal from your court,  we will strike down your unconstitutional decision for the second time and expose the members of your court. You shall be recognized by the public, no longer to be held as distinguished officers for citizen justice, but instead we will expose you for what your obstinate decisions declare you to be. The evidence of our relief for Mrs. Stutzman and for all faithful Americans shall forever label your court as post-modernist liberal activists with a disdain for the literal words of our nation’s foundational legal document. –
Today’s decision and Justice Kennedy’s concurring language, is also a harbinger for the unlikely survival of the unconstitutional West Virginia city ordinances that restrict business owner’s free speech. These much-reported-on ordinances, according to the words in two of this term’s Supreme Court decisions, clearly force citizens to use their artistic and creative talents to promote messages that violate their conscience. And in the coming Arlene’s Flowers vs. Washington the Court will reaffirm not only the protection of free speech but also a clear statement on the protection of a business owner to both live AND work according to their religious beliefs. Ten West Virginia cities have now adopted these unconstitutional ordinances and it appears by Justice Kennedy’s language today, that the Court is poised to strike them down as we always knew they should.
We now call for all West Virginia city councils to cease consideration of ordinances and policies that violate todays constitutional principles that impact free speech. We call on Senate President Mitch Carmichael, the new House Speaker, Delegate Josh Higginbotham, Delegate Riley Moore, all Republicans and constitutional Democrats in West Virginia, to sponsor and pass a version of 2016’s House bill 2881. That new law would ban any West Virginia city or municipality or political subdivision from passing an unconstitutional ordinance or rule that violates the language in today’s Supreme Court ruling. This much-needed new law would prevent any sub-division of West Virginia’s government from punishing Mountaineers for exercising their free speech and their religious convictions while in business.
Today is a great day for free speech and religious liberty. This week has been a great week for the Constitution. This time is a great time for the defense of the Judeo-Christian world-view that America was founded upon. The Family Policy Council and Family Policy Institute of West Virginia are proud for the small role that we played in today’s Supreme Court Victory.
Our primary goal as an organization is to implore ​more Mountaineers to join our fight.