The Massachusetts law meant that "McCullen [was] often reduced to raising her voice at patients from outside the zone—a mode of communication sharply at odds with the compassionate message she wishes to convey." The zones "also made it substantially more difficult for [her] to distribute literature to arriving patients." The Court noted that these burdens "have clearly taken their toll," citing undisputed testimony that the law substantially reduced the success of McCullen and her fellow litigants in persuading women not to terminate their pregnancies.
In striking down the Massachusetts law, the Court properly emphasized that "it is no accident that public streets and sidewalks have developed as venues for the exchange of ideas." And responding to arguments from the state that the buffer zones helped with administrative enforcement, the Court noted that "the prime objective of the First Amendment is not efficiency."
McCullen was a unanimous decision—every justice agreed that the Massachusetts law was unconstitutional. But Justice Scalia, writing for himself and Justices Kennedy and Thomas, scolded the Court for failing to taking the opportunity to overrule Hill v. Colorado, a 2000 decision involving abortion protesters. Hill also involved a state law that restricted expression outside of abortion clinics, but the Supreme Court upheld that law.
In a brief filed on behalf of a broad coalition of religious groups, Stanford Law professor Michael McConnell and I argued that the Court should have used McCullen to overrule Hill. We weren't the only ones. A host of progressive organizations and scholars have also disavowed Hill. Harvard Law Professor Laurence Tribe—himself a defender of abortion rights—calls Hill "slam-dunk simple and slam-dunk wrong."
The Court's failure to overrule Hill in McCullen is deeply disappointing. Justice Scalia suggested that the decision reinforced "an entirely separate, abridged edition of the First Amendment applicable to speech against abortion." But he also noted more optimistically that Hill is now a questionable precedent because the "unavoidable implication" of McCullen "is that protection against unwelcome speech cannot justify restrictions on the use of public streets and sidewalks." Indeed, we should not lose sight of the principles which McCullen upholds—First Amendment principles that are at least as important as the legal issues in Hobby Lobby. As Professor Tribe noted in a New York Times op-ed this past Friday, "The great virtue of our First Amendment is that it protects speech we hate just as vigorously as it protects speech we support." In McCullen, as Tribe observed, "all nine justices united to reaffirm our nation's commitment to allowing diverse views in our public spaces." That commitment reinforces the freedoms of the First Amendment, including speech, assembly, and the free exercise of religion.
Hobby Lobby, like McCullen, is a win for religious liberty. And RFRA is an important statute. As Kim Colby of the Christian Legal Society recently noted, "for two decades, RFRA has stood as the preeminent federal protection of all Americans' religious liberty." But RFRA is not a constitutional protection. Its protections could be withdrawn by Congress. And even in its current form, after some of its provisions were struck down by the Supreme Court in 1997, RFRA only applies to federal laws and regulations, not to state or local laws.
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