The Constitution guarantees us rights and liberties indispensable to a democracy. Are some more important than others? What if the First Amendment’s religious liberty and free speech rights trumped the Fourteenth’s promise of equal protection?
This is not a hypothetical question. It arose in a Supreme Court case heard last year, and in recent events.
First, the Human Rights Campaign complained last month when news stories reported that Karen Pence, the wife of Vice President Mike Pence, plans to return to teaching at the Immanuel Christian Academy in northern Virginia. The school rules declare that students, faculty, and staff are prohibited from participating in “homosexual activity or bi-sexual activity, promoting such practices, or being unable to support the moral principles of the school,” citing Leviticus 20:13 and Romans 1:27. If discovered engaging in these practices, they face dismissal.
Some argue that because the school is private, it need not adhere to the equal-protection guarantees of the Fourteenth Amendment. But the school’s admissions and staffing are open to the public. In that sense, it is a public accommodation.
Meantime, the school claims its religious liberty, granted in the First Amendment, allows it to require those associated with the institution to “acknowledge Jesus Christ as personal Lord and Savior.” Can it ignore one amendment (equal protection) by proclaiming the protection of another one (religious freedom)?
Another issue is whether state legislatures (and even some municipal and county assemblies) should ban a psychological procedure known as conversion therapy, which some claim changes the sexual orientation of minors who are gay or lesbian. Some 15 states, including Maryland, and the District of Columbia, have laws that ban the practice. Massachusetts does not, though Rep. Kay Kahn of Middlesex County (D-Newton) has filed legislation to ban the practice.
The law rests firmly on the equal protection guarantees of the Fourteenth Amendment to protect gays and lesbians. Last month, a Virginia psychotherapist challenged Maryland’s law, claiming First Amendment grant of free speech and religious liberty. So which one should prevail, the First or the Fourteenth?
The Supreme Court had an opportunity last year to answer this question. It dodged the issue.
The case, Masterpiece Cakeshop v. Colorado Civil Rights Commission, involved a baker, Jack Phillips, a devout, evangelical Christian, who declined to make a wedding cake for a same-sex couple, Charlie Craig and David Mullins. He told them that making a wedding cake would force him to endorse their union, which he opposed. It would require him to express a message with which he disagreed.
Craig and Mullins filed an action with the Colorado Civil Rights Commission, which ruled in their favor. The Colorado Anti-Discrimination Act prohibits discrimination based on sexual orientation in a “place of business engaged in any sales to the public and any place offering services … to the public.”
After the case traveled through several layers of adjudication, with Phillips losing at each level, he appealed to the Supreme Court.
Writing for a seven-to-two majority, Justice Anthony Kennedy (now retired) picked out statements from the oral argument, not from the written briefs filed by lawyers. He wrote that the transcript disclosed that one of the members of the commission unfairly criticized Phillips’s religious beliefs. The comments had “some elements of a clear and impermissible hostility toward the sincere religious beliefs that motivated his objection.”
One commissioner argued that “to me it is one of the most despicable pieces of rhetoric that people can use to — to use their religion to hurt others.” The commissioner compared Phillips’ beliefs to “defenses of slavery and the Holocaust.” Justice Kennedy concluded that the commission’s hostility was “inconsistent with the First Amendment’s guarantee that our laws be applied in a manner that is neutral toward religion.”
Justice Ruth Bader Ginsburg wrote in dissent that Kennedy failed to acknowledge that the case had traveled through four levels of adjudication before it reached justices: from the Civil Rights Commission to an administrative law judge, who returned the case to the commission, and eventually to the Colorado Court of Appeals. He should not have focused on the words of only one commissioner.
The issue remains: Do free speech and religious liberty trump equal protection? In other words, does Karen Pence’s decision to return to a school that undermines the equal protection clause hold any weight? Does the Virginia psychotherapist have a case about gay and lesbian conversion? How do we reconcile a presumed conflict between the First and Fourteenth Amendment? At present, we have no good answer.
Jack Fruchtman, a seasonal resident of Aquinnah, teaches constitutional law and politics at Towson University.