When Rights Collide

The recent spate of controversial decisions made by the U.S. Supreme Court has gotten me thinking about rights and the role of law in our life. 

As I've gotten older, I've become more libertarian in my views. The libertarianism I speak of is not the political movement (spelled with an upper case "L") which concerns itself mainly with laissez-faire capitalism, but rather the more general meaning of the word, stemming from its root, that is to say, liberty. In other words, I believe a society such as ours which claims to be "free", should allow its citizens to be well, free, so long as their freedom doesn't impinge on the rights of others.

Pay close attention to that last part.

I believe people should be free to live their lives as they choose with governmental interference kept to a minimum. 

I believe people should be free to love and to marry whomever they please, and to identify themselves however they see fit.

I believe that people should be free to obtain the health care they and their physician (not their state legislator, or governor) feel is necessary to keep themselves well. 

 

I believe that people should be free to practice whatever religion they chose, or none at all. 

I believe that educators, with the input of parents, should be free from the government deciding what they should teach or what books their students should be allowed to read.

I believe that people should be free to speak their minds, even if what they have to say is unpopular.

That last part, freedom of speech, is so important in our society, that it is guaranteed in the first section of the "Bill of Rights" of our constitution, along with the freedom of religion, freedom of the press, the right to peaceably assemble, and the right to petition the government for redress of grievances. As a side note, for those who believe that nowhere in the Constitution can the phrase: "separation of church and state" be found, they are correct. Instead, before any of those rights mentioned above, the very first clause of the First Amendment of our Constitution unequivocally declares that: "Congress shall make no law respecting an establishment of religion", which means exactly the same thing. 

Anyway, two of those rights enumerated in the First Amendment, speech and religion, figure prominently in one of the Court's latest controversial rulings. The case is identified as 303 Creative LLC vs. Elenis and it could prove to be a landmark decision in the realm of public accommodation in the United States. 

The case involves a Colorado website designer who is looking to branch into creating sites revolving around weddings. The designer, Lori Smith, wanted to post a disclaimer on her own website saying that due to her Christian faith, she would not be accepting business from gay couples intending to get married. However, she learned that such a notice violated Colorado law stipulating that public businesses could not discriminate against people based upon their gender identity or sexual orientation, among many other things.

Smith decided to sue, claiming that the Colorado law violated her First Amendment right to freedom of speech.

When the Supreme Court ruled in Smith's favor a couple weeks ago, I have to say that I agreed with the decision to some extent. Let me explain:

First of all, the inevitable and reasonable question arises: do I believe it's OK to discriminate against people because of their gender identity or sexual orientation? To that I would answer no, I believe it is wrong. But I would add that it is imprudent to make laws against everything that we believe is wrong. It is wrong to be rude to people, but it is not against the law, nor should it be. It is wrong to lie, but unless a lie is told under oath, it is not against the law. It turns out many things are ethically wrong, but not illegal. 

Laws are created essentially to solve conflicts in society when people left to their own devises cannot solve them on their own. In a civilized world, (the jury is still out on that one concerning this world I'm afraid), people solve problems and conflicts all the time on their own without having to turn to the law, which I would argue is a good thing most of the time. However sometimes the solution is worse than the problem, which is where laws become necessary.

In Ms. Smith's case, it seemed perfectly reasonable to me to explain up front to potential clients that because of her beliefs, she wasn't comfortable promoting gay weddings, but would gladly provide the clients in good faith, a list of designers who would. I would argue this is indeed serving potential clients as finding someone to perform a service is more than half the battle.

Besides, if I were getting married, something I've already done twice and have no intention of doing again, the last thing I would want is to have someone working on the event who did not approve of my lifestyle or my marriage. 

That thought had been running through my head ever since another case went before the Supreme Court a few years ago. The case, Masterpiece Cakeshop v. Colorado Civil Rights Commission, involved a baker who refused to provide a wedding cake to a gay couple. Again, I believed that while I didn't agree with the baker's motivations or actions, I felt this case and others like it could have been resolved without involving the courts, especially in our day and age of the internet, where the couple could go online and fight the case in the court of public opinion, often with more effective results than in a court of law. (Please bear in mind that until recently I wasn't aware of the specifics of this case, see below).

However...

Let it be known that's what I believed two weeks ago but having given it a considerable amount of thought since then, have changed my mind and have done a complete 180.

The post you're reading was originally intended to be a half-baked defense of the Court's decision based upon my half-baked libertarianism. Given my previous ambivalence on the matter, I'm not entirely sure what inspired me to write the following two sentences, but I stand by them today and will until my dying day:

There are two essential ingredients for a democracy to work, the first is that the minority must accept the decisions of the majority. The second, at least as important as the first if not more, is that the majority must accept the rights of the minority. 

The problem with libertarianism's objection to legislation in all but the most serious of cases, is that it assumes people will do the right thing because it generally works in their own self-interest. You know the drill, "do unto others as you would have them do unto you", "what goes around comes around", "instant karma's gonna get you" and all that. Unfortunately, it doesn't take much living in the real world to realize that it doesn't always work out that way. 

That's why we need laws to protect the rights of minorities, in fact, those laws are the bedrock of our democracy. 

Many of the first ten amendments to the Constitution, especially the first one, indirectly address the rights of the minority. Ironically, The Bill of Rights was written at a time when owning people was still legal. On December 15, 1791 when the Bill of Rights was ratified, eighteen percent of the U.S. population was enslaved, including a little over two percent in the Northern States alone. The Bill of Rights, the cornerstone of safeguarding our liberty as American citizens, did nothing to change that.

It would take a Civil War seventy years later, to eradicate what has come to be known as "America's original sin" once and for all.

One of the most consequential amendments to the constitution, the Fourteenth, was adopted on July 9th, 1868, three years after Lee's surrender at Appomattox to Grant.

Here's the meat and potatoes of the Fourteenth Amendment, Section One:

All persons born or naturalized in the United States, and subject to the jurisdiction thereof, are citizens of the United States and of the State wherein they reside. No State shall make or enforce any law which shall abridge the privileges or immunities of citizens of the United States; nor shall any State deprive any person of life, liberty, or property, without due process of law; nor deny to any person within its jurisdiction the equal protection of the laws.

As clear as legal writing can be, the Fourteenth Amendment declared who will be granted the full rights of citizenship in this country, that no person, citizen or not, shall be punished without due process of the law, and that everyone residing in the United Sates, legally or not, is granted equal protection of the law.

But there was still a lot of work to do. The Thirteenth, Fourteenth and Fifteenth Amendments to the Constitution, known as the "Reconstruction Amendments", were written during the period around the end of the Civil War. In a nutshell, the thirteenth amendment officially abolished slavery, and the fifteenth prohibited the government from denying the right to vote on the basis of race. (Women would have to wait another 50 years for the adoption of the Nineteenth Amendment which granted universal suffrage in the United States.) 

Anyone with a sense of U.S. history knows that the post-Reconstruction was a particularly dreadful time for black people in this country, especially in the South. It is the time that gave birth to the KKK, Jim Crow segregation laws, public (and private) lynchings, and illegal disenfranchisement. With virtually no one willing or able to enforce them down south, it was as if the reconstruction amendments did not exist. 

Despite the non-violent movements that confronted the treatment of blacks in the U.S., led by estimable figures such as Frederick Douglass, Booker T. Washington, Ida B. Wells and W.E.B. Du Bois, it would remain that way, virtually unchanged for nearly three quarters of a century. 

I think it's fair to say that the modern American Civil Rights movement began in earnest at the end of the Second World War in 1945 when black members of the armed forces who served this country with distinction in Europe and the Pacific, returned home to their previous lives as second-class citizens. This grave injustice did not go unnoticed, even outside of the black community.

As I've written in this space before, one of the first great, symbolic victories in the modern American Civil Right Movement came on April 15, 1947, when Jackie Robinson entered the previously segregated baseball Major Leagues and played his first game with the Brooklyn Dodgers. Quoting myself:

Jackie Robinson (may have only been) a ballplayer and much of his legacy is wrapped around a game. But back in the day, baseball wasn't different from any other institution in the United States in regards to race, it was simply more public, and the integration of the game brought the issue of racial injustice in this country to the forefront. 

Soon to follow were the harrowing, trailblazing events and the people who inspired them that symbolize the American Civil Rights movement and would change this country forever. I won't go into detail here as I believe the mere mention of the following names and events should be sufficient to anyone with a modicum of understanding of American history:

• Emmett Till
• Thurgood Marshall
• Rosa Parks
• Medgar Evers
  
• The Lunch Counter Sit-Ins
• The Freedom Rides
• The Birmingham Campaign
• The March on Washington
• The Selma to Montgomery March
  
• Martin Luther King

to name just a few.

And yet, people were still unmoved by injustice, so it took laws to make real change. Again, I won't go into much detail here, for more information you can look up these groundbreaking SCOTUS decisions, executive orders, acts of Congress and amendments to the Constitution, all made possible by the Fourteenth Amendment:

• Executive Order 8802, which outlawed discrimination based on race, color, creed, and national origin in the federal government and defense industries.
• Executive Order 9981 which officially integrated the armed forces.
  
• Brown vs. Board of Education which declared state sanctioned segregation of schools unconstitutional.
  
• Bailey vs. Patterson which prohibited racial segregation of transportation facilities.
• The Twenty-fourth Amendment, which eliminated the poll tax as a requirement for voting.
  
• Loving vs. Virginia which affirmed the right to inter-racial marriage.
• The Civil Rights Acts of 1957, 1960, 1964 and 1968
• The Voting Rights Act of 1965
• The Equal Employment Opportunity Act of 1972

Most relevant to the topic of at hand is The Civil Rights Act of 1964 which among other things, prohibited discrimination in public accommodations, facilities, and schools.

From that point on, from a legal standpoint at least, black people no longer would be required to sit at the back of the bus, figuratively and literally.

But it didn't stop there. The Civil Rights Act of 1964 insured that those guaranties of the right to not be discriminated against would be extended to other groups who had a long history of being marginalized in American society. In addition to race, the categories that were deemed protected classes under the anti-discrimination statutes as spelled out in the Civil Rights Act of 1964 were age, national origin, religious beliefs, gender, disability, pregnancy and veteran status.

In addition to these categories, states were free to add their own protected classes of individuals, including sexual orientation and gender identity. Colorado did so on May 29, 2008, officially banning discrimination of the LBGTQ+ community in housing, public accommodation and advertising. In 2021 the state expanded these protections to employment.

 

As of this writing, about 20 states include sexual orientation and gender identity as protected classes.

In the Masterpiece wedding cake case, the couple who were refused a cake for their wedding, filed a complaint with the Colorado Civil Rights Commission against the baker for what was a clear violation of the state's public accommodation anti-discrimination law. The Commission ruled in favor of the couple and required the baker not only to provide cakes for gay weddings but also to:

change its company policies, provide 'comprehensive staff training' regarding public accommodations discrimination, and provide quarterly reports for the next two years regarding steps it has taken to come into compliance and whether it has turned away any prospective customers.

The baker responded by ceasing to bake wedding cakes entirely.* He also sued the CCRC on the grounds that the law violated his first amendment right to freely exercise his religion. That case made it to the Supreme Court. The case which seemingly pitted two fundamental rights against each other, stymied moderate members of the Court such as now retired Justice William Kennedy who while on the bench, was the court's staunchest defender of the First Amendment AND gay rights. 

So the Court punted. 

Their decision in that case was inconsequential, it rested on a technicality, namely that the CCRC erred in its ruling by using disparaging words about religion, which led Kennedy to write in his majority opinion: "religious hostility on the part of the State itself" violated the "State's obligation of religious neutrality." The court ruled 7-2 in favor of the baker, the dissenting votes coming from the Justices Sonia Sotomayor and the late Ruth Bader Ginsburg.

With Ginsburg and Kennedy gone, both replaced by far more ideologically conservative judges, the table was set for a different outcome with the 303 case. The plaintiff argued what separated her case from the one preceding it, is that in the role she hoped to play in her new business, she would be writing copy to accompany pictures posted on the wedding websites. As she objected to gay marriage, she claimed she would be forced to write something she didn't believe in, thereby violating her First Amendment right to freedom of speech.

Six justices made up exclusively by the ideologically conservative branch of the Court agreed with her. The remaining three dissented.

This ruling is consequential because in it, the Court is saying that it is indeed OK to discriminate in some cases. Defenders of the decision say the ruling is very narrow in that it only concerns cases where a business is required to provide language, a protected right, rather than say, just a cake. But wait a minute, can't a baker claim his or her cake is a work of art, therefore a form of personal expression which could also be considered protected by the First Amendment?. What about a wedding photographer or a musician?

We don't have to stop there, what about business owners who are morally opposed to mixed marriages? Or folks whose religion teaches them that blacks Jews and Catholics are devil worshipers? Believe me, those people are out there, not just a product of my imagination.

Which begs the question, what if the plaintiff in the 303 case had instead sued to refuse service to Catholic couples, how would the six conservative justices, five of whom are practicing Catholics, have voted?

I can't say for certain, but I have a sneaking suspicion that the outcome of this case would have been different, assuming the Court would have even bothered to hear the case at all.

Regardless, as a result of this ruling, messages like "Gays not served" and "Blacks, Jews and Catholics not welcome" are now AOK according to this court's ruling, at least in some cases. 

What's next?

We'll have to see as we can now expect a whole new slew of lawsuits coming before the court, claiming the plaintiff's First Amendment right to discriminate.

Yes I know, my argument here predicting all sorts of terrible things that might result from this decision, could fall into the category of a slippery slope logical fallacy. But here's the thing, if you want to change something big in the courts, you have to start small. I'm not questioning the motivations of the two plaintiffs in these cases. I have little doubt the baker and the web designer are sincere in looking after their own interests, protecting their faith and respective businesses. Challenging the law is their First Amendment right after all.

But sustaining a lawsuit all the way through to the Supreme Court takes tremendous resources which few individuals have. Typically, there is an interested third party, usually an organization with deep pockets and an agenda or axe to grind who takes up causes such as this to provide the funding and the legal expertise to make cases like these possible.

Sure enough, both plaintiffs were represented by a group called the Alliance Defending Freedom, a Christian advocacy group who in their mission statement declares itself to be:

the world’s largest legal organization committed to protecting religious freedom, free speech, marriage and family, parental rights, and the sanctity of life.

From their website:

ADF is working to secure Generational Wins in the five key areas.

Those five key areas are:

• "Guaranteeing the right to life from conception to natural death."
• "Restoring religious freedom as a fundamental right."
• Securing free speech for all."
• "Guaranteeing the fundamental rights of parents to direct the upbringing and education of their children."
• "Ensuring the law respects God’s created order for marriage, the family, and human sexuality."

From my experience, whenever a Christian organization claims it is working to "protect religious freedom", what they are really working for is the right to impose their religion on others.  

Rest assured that for the ADF, the First Amendment in these two cases is only a means to an end, they have much bigger fish to fry.

Here from their website is a detailed description of the group's efforts to help successfully overturn Roe v. Wade. Pay close attention to the small steps they took before the big leap.

Now that item number one of their "Generational Wins" to-do list is checked off, the two victories regarding denying public accommodations for LGBTQ+ people could be the first steps necessary for them to check off item number five, "respecting God’s created order for marriage".

In other words, getting the Supreme Court to overrule Obergefell v. Hodges, the landmark 2015 decision, ruling that the right to marry is guaranteed to same sex couples by the Due Process and Equal Protection Clauses of the Fourteenth Amendment.

Justice Clarence Thomas, who not surprisingly voted in the minority in Obergefell, has publicly invited like-minded parties to bring cases to the Court that challenge rulings he does not like involving not only the right to gay marriage, but sexual acts between consenting adults (Lawrence v. Texas) and contraception (Griswold v. Connecticut). In his concurring opinion to the case that overturned Roe, Thomas wrote:

In future cases, we should reconsider all of this court’s substantive due process precedents, including Griswold, Lawrence, and Obergefell.

This Court has a track record of taking away rights Americans have enjoyed by for decades by overruling precedent, and it is clear that Thomas intends to keep on doing it.

It would be interesting to hear Justice Thomas's views on yet another due process precedent, Loving v. Virginia, the overruling of which would invalidate his own marriage. 

There are more fundamental issues with this case than the dreadful consequences that may likely result from this decision. I understand how some people might resent the comparison of someone like Rosa Parks, who was arrested for not sitting in her proper place on a bus, to a couple who were denied a wedding cake. But grave injustices and not quite as grave injustices are both injustices. If we are going to have laws that prohibit businesses from discriminating against particular groups of people, something I believe the majority of Americans support, we can't cherry pick the offenses we feel are "worthy" from others we feel are not. If it is illegal to ban black people from being served at your place of business, it is illegal (in the states where they are a protected group), to ban LBGTQ people. Equal protection under the law means just that. It shouldn't be that hard to figure out.

In a perfect world, we wouldn't need laws, we'd all be able to figure out how to do the right thing on our own. As we saw above, the laws that protect against discrimination written over the last eighty years or so, have helped set us on the course of being a more free, equitable and just society, something we should all be on board with. We still have a lot of work to do to get to that place and it doesn't help that this Court is hellbent on setting us backward a half century or more. 

Funny, in the process of writing this post, I went from being OK with this decision to believing it is an unmitigated disaster.

Guess I should turn in my libertarian card. 

CODA

*Getting out of the wedding cake business entirely is a very reasonable solution to the problem for the baker who didn't want to bake cakes for gay weddings. Come to think of it, it's a good rebuttal to the argument that someone's First Amendment rights are violated when their work requires them to do or say something they do not agree with. They are free to pursue other work opportunities that do not conflict with their beliefs. 

A good example is a friend of mine who worked for a firm that considered doing business with a company that manufactured assault weapons. As he has a moral objection to these weapons, my friend was prepared to quit his job rather than contribute to something he felt was immoral. Sometimes there are difficult decisions to be made in life, especially if you have strong beliefs. Nowhere in the Constitution does it guarantee the right to a job that will never require you to do something you may not believe in. Personally, I see no First Amendment issue in these two cases at all.