When rights and liberties clash


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.


  1. The Equal Protection Act does not apply to private entities. Period.
    I am free to loan my garden tools to only my black neighbors and not to my white neighbors. I might be irascible in doing so but I am free to do it. Fruchtman knows this and is simply stirring the pot on the Karen Pence issue.

    • I tend to agree that this is just pot stirring. Don’t have to read past the first sentence – rights derive from our creator not the constitution. This country is a constitutional republic not a democracy. Beyond that, amendments 1-10 enumerate natural rights, 14 is post reconstruction. First is there for a reason, or make an argument why it’s not.

  2. The school is offering a product to the public and it’s for a profit. It’s not a church, it’s a business.

  3. Why are we examining the constitutionality of actions by some school down in Virginia? Our own public officials right here on Martha’s Vineyard do a pretty good job of violating the Constitution, on a regular basis.
    It would be nice if Mr. Fruchtman could spare a little of his time to examine the actions of the TIsbury Police. Pick an incident, plenty to choose from. But then that doesn’t carry with it such national attention, likely the real motive for this piece of irrelevancy to our everyday lives here.

  4. New Englander why dont you read the law before displaying your ”feelings”. Private schools can be all girl or all boy and not allow LGBT. If they do not receive Federal funds they can do what they want. In your house you could put a black and white TV in one room and a color tv in the other room.

    • @Andrew – I’ve the misfortune to have watched many municipalities argue that and lose. Not receiving Federal funds does not prevent public access.

  5. A suggested guide on First vs Fourteenth conflicts is personal liberties of individuals extend until they infringe on personal liberties of other individuals, meaning unlimited personal freedoms are not Constitutional.

  6. The school in question here sites 2 passages from the bible ( old testament) as a reason to discriminate..
    Leviticus 20:13 And Romans 1:27 . Pretty powerful stuff, directly from god. Who are we to question that ? But let me cite two other biblical passages ( straight from god also )
    Exodus 31:15 — “For six days work is to be done, but the seventh day is a day of sabbath rest, holy to the LORD. Whoever does any work on the Sabbath day is to be put to death.”

    Numbers 15:32 provides an example as to how to deal with someone who violates this rule :
    “While the people of Israel were in the wilderness, they found a man gathering sticks on the Sabbath day. 33 And those who found him gathering sticks brought him to Moses and Aaron and to all the congregation. 34 They put him in custody, because it had not been made clear what should be done to him. 35 And the LORD said to Moses, “The man shall be put to death; all the congregation shall stone him with stones outside the camp.” 36 And all the congregation brought him outside the camp and stoned him to death with stones, as the LORD commanded Moses.”
    My take is that if any person works at that school on the “sabbath” then, they really don’t follow the bible, and are therefore heretics– and we know what the bible says about that.
    If on the other hand, if ABSOLUTELY no one works there on the sabbath, then they are far enough out there that I would give them a pass, and let them discriminate — as long as they follow Leviticus 19:19 also of course.

      • You know, God spoke through the scribe. (eye roll).

        I’ve used the Bible as proof assorted social issues of today existed thousands of years ago. I credit the wisdom of anthropologist-type scribes to sift through explanations and save the good stuff. Unfortunately, the unenlightened reader will misread anything and everything.

      • Same places that say vaccinations cause autism, Hillary headed a pedophile ring from a pizza parlor, and climate change is a hoax because it’s snowing in Missouri.

      • salt —“And the LORD said to Moses”,……it says it in the bible— you are not questioning the validity of the bible, are you ? What other “proof “do you need ?

        • I believe you refer to those who religious leaders have called lunatics, individuals claiming God spoke through them as they butchered victims rather than the civilized way of sending followers to wars to be butchered by armies of neighboring kingdoms.

          Because religious leaders know what’s best for us, right?

  7. Who could ever place reliance on the Bible as factual or even admissible in court. Not only is it unable to be authenticated, but it is all aspirational made up gobbedly gook.

    • James– I agree with you about the bible– we should not have our laws based on any of it– we also shouldn’t have Sharia law ( a bone to the nut cases out there)
      But we would all be better off if we followed the teachings of the Flying Spaghetti Monster.

      • The Equal Protection Act is not from the bible nor is the law that allows private schools to pick who they want. Those laws are made by secular courts. The school itself operates under biblical principles and last time I looked that is allowed. Can you not pay attention to specifics? The law that gives churches freedom from the IRS is a secular law not a biblical law. Dondondon with your rant above about Old Testament law you clearly do not understand the context of the entire bible—you just rant. The purpose of the law was to show mankind he couldnt keep the law. Then came Jesus and gave mankind a free gift of Grace. You dont have to believe any of this but for petes sake try to understand what the bible proclaims to be and then discard it. I understand your flying spaghetti monster—- I have researched it in full detail and now I choose to reject.

        • Whoa. What law shows mankind that he can’t keep the law? Biblical law which is not admissible in court? Or secular law which by default means you are arguing no one can obey?

          • Old testament laws were given by God to show people they couldnt keep them. Then came Jesus death to give the gift of Grace. People were no longer under the Old Testament laws. Do you understand now newenglander. Private schools operate under secular law that protects them as private institutions to practice what they preach just as churches are protected.

          • @Andrew – You just argued against separation of church and state, you’re biased to the point where your personal freedoms are infringing on the personal freedoms of others.

            But to throw scripture back, you must be aware the Gospel in the New Testament is counter to that. I’m not talking about just “give unto Caesar,” there are specific instructions how to treat one another without including religion. So maybe you’re correct about Old Testament laws as you refuse to follow those of the New Testament.

        • “—you just rant. ” Really, Andrew? You’re calling out others for ranting? Please do not witness to me. Practice what you preach.

        • so since Jesus freed us from old testament laws, homosexuality is ok ?
          By your logic here , we can work on the sabbath, wear clothes made of different materials, and men can lay with men . All those rules are in the old testament.. Can we ignore 2 of them , and claim the third is still “god’s law” ? And you keep referring to the ideal that these “laws” were only to show people that they couldn’t keep them. Right— You should thank Mr. Brennan for his rules here, as I really would rather say what I really think about that.. But I can keep His rules.. The capital “H” when referring to Mr. Brennan is intentional, btw.

  8. newenglander please give me an example of my personal freedoms infringing on others personal freedoms. This started in my defending Karen Pence teaching at a private school. What are you talking about?

    • Part 2: Easy to find where you said “Equal Protection Act does not apply to private entities” but oddly not where you defended Karen Pence returning to teach at the Immanuel Christian Academy. Please restate for clarity.

  9. I have a question in response to this comment by Andrew: “Old testament laws were given by God to show people they couldnt keep them. Then came Jesus death to give the gift of Grace. People were no longer under the Old Testament laws.” If that’s true, then why do so many Christians excuse their homophobic behavior with Leviticus?

    • jbnorton. Because the new testament also says that Homosexuality aint a good idea. It is not homophobic to disagree with homosexuality. If one discriminates against homosexuals that is an entirely different matter and should not be done. Problem with liberals is that dont differentiate between agreement and discrimination, between legal and illegal—they love to conflate and then yell ”racist” or ”homophobe”

      • Conservatives don’t just “disagree” with homosexuality, they legislate against the rights of the gay community. They deem anyone who is gay to be disqualified from their community. Every single act Conservatives commit in this way against the gay community is and will always be cold hearted discrimination. No need to beat around the bush about it. It’s terrible for the gay community in the short term, but in the long term conservatives will lose this battle as they usually lose most battles.

      • Andrew– ” the new testament also says that Homosexuality aint a good idea” ?
        could you please reference the passage ? i can’t find it in my bible. perhaps you have an “alternative bible” ?
        You gotta be kidding about with your line “it should not be done” .
        I think you have publicly supported the homophobic baker, the homophobic school the second lady works at , and a military ban on LGBT ‘s ..

  10. …..and how silly it is that anyone can justify exclusion of a human from the community based solely on some dreamed up myth of some ghost or dragon. Conservatives are so desperate to exclude themselves from having to behave justly in the present, that they willingly cling to whatever delusion about who will pat them on the back in some fictional afterlife.

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