As the executive and legislative branches of the American government descend into new depths of partisan conflict and gridlock, advocacy groups are turning ever more frequently to the courts to resolve issues that regular politics cannot. We currently await pronouncements at various levels of the federal court system on such hot-button issues as gun rights, immigrant rights, and a balance between religious freedom on the one hand and LGBT civil rights on the other.
But the courts are not immune from the same extreme and absolutist language and views that have come to characterize our politics.
Competing social groups wrap their causes in the lofty language of the Bill of Rights and insist on the absolute priority of their rights over all others. We must choose, we are told, between gun rights or victims’ rights, religious rights or sexual and gender rights, freedom of speech or reputational rights. But such absolutist advocacy that “my right or group should always win” seriously overlooks the history of rights reflected in the text of the Bill of Rights itself.
History shows our Protestant heritage of rights to be a community affair, which means that no right is absolute. Rather, a collection of values must be weighed, balanced, and carefully calibrated. The commitment to the overall system of rights is as important as the belief in any single right.
My constitutional law professor made this point by asking us what “the freedom of speech” meant in the First Amendment. I had never thought about the significance of that article but could see that it did more than simply protect freedom of speech. The article conveyed the idea of a regulating set of principles surrounding the idea of free speech. Protecting “the” freedom of speech also incorporated long-standing common law principles about limiting libel, slander, and reputation. That’s why “hate speech” is against the law.
This balancing of rights and values was seen even more explicitly in the religion clauses. The First Amendment did not just protect the “free exercise of religion” but also forbade laws “respecting an establishment of religion.” The two clauses meant that neither could be interpreted in an absolute fashion; rather, they must be weighed in some kind of tension and balance.
shake and bake
Thus, the Masterpiece Cakeshop case, which pitted a Colorado Christian baker’s rights of conscience and expression against the nondiscrimination rights of a gay couple, involved a careful balancing of rights and fundamental values. Some religious liberty experts fear that the Supreme Court was too nuanced in its decision in the Christian baker case. Though Jack Phillips, the Christian baker, won the case, he did so because lower state tribunal judges had made remarks that appeared biased against Christians.
Some argue that the Masterpiece Cakeshop decision only protects religious convictions from overt abuse and ridicule and that if the lower tribunals had politely denied the rights of the baker instead of ridiculing his beliefs, he would have had no case. This narrow reading of the decision seems hard to justify. But it has caused activists in the LGBT community to immediately turn around and sue the same Christian baker again—this time for not being willing to bake a cake celebrating a transgender event.
The timing of the lawsuit is probably not good for the LGBT community. The confirmation last summer of Supreme Court Justice Brett Kavanaugh has tilted the court, probably quite decisively, in the conservative direction. Justice Kavanaugh replaced Justice Anthony Kennedy, who was a regular moderate vote on the court. Justice Kennedy would side with the liberal wing of the court as often as the conservative side and had become a zealous advocate of LGBT rights.
Given his record, it’s very likely that, had Justice Kavanaugh voted on the Masterpiece Cakeshop case, he would have supported the religious freedom side of the balance. And should the second case against Phillips reach the high court, it’s likely that there will be a far more decisive decision in favor of religious freedom. Religious liberty advocates will be heartened by such a result.*
Whose religious freedom?
But again, religious freedom advocates need to remember that here, too, there is danger in absolutism. Rights to sexual freedom and identity can become oppressive if given no meaningful limits, but claims to “religious freedom” can also be used as a tool to entrench or impose the beliefs of a religious majority.
Though religious liberty is the first and foundational freedom in that it reveals the transcendent nature of all our rights, it cannot be absolute. Murder, adultery, or theft cannot be justified or defended in the name of exercising one’s religious freedom. Similarly, a religion that claims the right to impose itself on others through the use of public funds, resources, or policies can become as oppressive as the secular ideologies it seeks to oppose.
A hint that the court may be moving toward this other extreme was revealed in the very recent matter of death row inmate Domineque Ray. Inmate Ray was a Muslim believer, and he requested that he be allowed to have an imam, a Muslim clergyman, at his side during his final moments. Prison regulations, however, only permitted prison employees to be in the death chamber, and the only chaplains on staff were Christian. So Christian inmates could have a Christian chaplain at their side at an execution, but other religions were out of luck. Ray challenged this up to the Supreme Court, but all five conservative justices on the court sided against inmate Ray, ruling that the First Amendment did not provide him equal access to a chaplain of his religion.
Interestingly, the four liberal justices sided with Ray, arguing that the Constitution required religious groups to be treated equally. Justice Elena Kagan wrote that “the clearest command of the Establishment Clause” is that “one religious denomination cannot be officially preferred over another,” but “the State’s policy does just that.” So the conservatives, who often have the most to say about religious liberty, at times don’t appear ready to extend that freedom to non-Christian religions.
The conservative justices also seem less aware of the importance of the Establishment Clause to maintaining religious freedom. In the First Amendment, our Protestant founders sought to balance the right to religious freedom with the right to be free from religious imposition by state authorities. Religious people cannot, in the name of religious freedom, impose their religious beliefs through the mechanisms of the state.
A community of rights
This same pattern of balancing of values can be seen throughout the Bill of Rights, as the rights of individual privacy give way to public security concerns in the face of particularized search warrants; life, liberty, and property are protected from arbitrary or lawless intrusions, and the rights of victims and the accused are balanced through procedural protections.
This Protestant idea of the community of rights is brought to its height in the Ninth Amendment. Here it is acknowledged that the community of rights extends beyond those listed in the Constitution—that the rights listed in the Constitution should not “be construed to deny or disparage others retained by the people.” It reminds originalists and living constitutionalists alike that we are meant to interpret the Constitution in light of the community of rights, both internal and external, in which it itself was formed. Further, it reveals that these rights are not the product or gift of the government but reside in the people. The Declaration of Independence reveals that these rights did not originate with the people; they originated with God Himself.
This all means that the wrong position on a host of constitutional rights questions may not be primarily how one comes down on the issue, but rather in the manner in which the position is held. The wrong position in all these cases involving a clash of fundamental rights is the one that says these are easy cases for the Supreme Court. Those who admit the difficulty of the balancing of the values involved have it right however they may come out on the merits of these cases.
Freedom of religion, expression, and movement are among our most venerable and deeply rooted liberties; yet nondiscrimination, personal safety, and national security are also profound values that are core and central to our society. Whenever these rights clash, a fair resolution will involve careful, nuanced, difficult evaluations of values and balancing of interests.
To say that a decision that involves such competing values is easy means ignoring years of history and experience during which our national community has learned to appreciate all these important values. It’s easy to remember the individual rights that we personally value most. But it’s also easy to forget the community of rights of which they are a part—a community of give-and-take that makes our society a civil and fair place to live for people of all faiths, beliefs, and values.
This is the society that our dissenting Protestant founders envisioned and that has become a blessing and safeguard for people of all faiths and non-faiths. We do well to seek to preserve it from extremes of either the secular left or the zealous right.
* The state of Colorado withdrew its legal action against Masterpiece Cakeshop before the case reached the Supreme Court, probably recognizing that, given the Court’s conservative majority, their chance of winning was slim.
Nicholas Miller, JD, PhD, is a professor of history at Andrews University in Berrien Springs, Michigan, who specializes in religious liberty and constitutional law.