I’m no constitutional law professor. And that’s a good thing. All I got is common sense, which tells me we have a clash of two constitutional amendments: the First v. the Fourteenth in the private religious business v. gay rights issue. Which amendment will win?
The First Amendment promises religious freedom, while the Fourteenth promises “equal protection of the law” or as it can possibly be interpreted–no discrimination based on race or religion and now sexual orientation (and so on).
Never mind the original historical context of the Fourteenth was about former slaves. The Supreme Court of the U.S. (SCOTUS) is famous for running roughshod over the original intent.
For the issue at hand, the debate is–can a religious business owner deny services to or discriminate against someone whose beliefs and conduct violate the owner’s religious belief? Can the customer sue and win if the business owner refuses to go to the wedding to set up the floral arrangements or to serve cake, on location?
And we’re not talking about race, either. The Constitution already says a lot about it, e.g. the Thirteenth and Fifteenth Amendments. We are no longer living in the 1950s, when Jim Crow laws were “baked” into society.
The race issue set apart, which side do you favor in the religious liberty dispute?
Do you permit the business owner to discriminate on the basis of a customer’s sexual orientation and then the owner risks losing business? You’ve heard of the statement directed at suspects by the cops, “You have the right to remain silent.” Well, how about this one directed at business owners who refuse service, “You have the right to remain ‘business dumb.'” That means you give the owners the right to do what they want on their private property, even if it means their losing money in a public exchange of money for services or a product.
Or do you favor the gay rights activists who deny such freedom to a religious business owner to do what he wants when it involves public commercial transactions because the business owner is discriminating against them?
Let’s boil it down.
The courts will need to balance the religious liberty (First Amendment) of a private business owner against the right of the customer not to be discriminated against (Fourteenth Amendment) when he doesn’t conform to the owner’s beliefs .
My prediction, without bringing in Religious Freedom Restoration Act of 1993 because the SCOTUS can deny or weaken the Act in a case brought before them?
The courts at various levels are dominated by free-thinking (in the bad sense of the word) judges who don’t care about the Constitution’s historical context and who can find all sorts of unspecified and unnamed rights in the Constitution when this suits their political agenda.
Therefore, the gay rights activists will win more often than lose. At the SCOTUS, the gay activists will win, unless a GOP president can nominate justices who show humility before the Constitution when it is unclear on a current issue and who then toss it back to the legislative branch to decide.
Though I see strong arguments on both sides, this website is named Live as Free People. I favor freedom for private businesses to do as they please, even if it hurts their bottom line.
Oct. 21, 2015