One of the most difficult issues confronting our nation today is the balance between two rights of great value: the right of religious conscience and the right to equal treatment based on sexual orientation. Both rights go to the very essence of the person seeking to exercise them and must be treated with respect.
James Madison, the father of the Bill of Rights, taught that rights can best be viewed as property. The government may take one’s tangible property with just compensation. Other rights that define self, however, are not compensable by government and may rarely be taken for any reason. One such reason is when rights that define oneself come into conflict, requiring a sensitive balancing of those rights. In such cases, the Constitution hangs in the balance.
The Supreme Court recently heard arguments in just such a case, Masterpiece Cakeshop, Ltd. v. Colorado Civil Rights Commission. The issue presented is “Whether applying Colorado’s public accommodations law to compel the petitioner (the baker) to create expression that violates his sincerely held religious beliefs about marriage violates the free speech or free exercise clauses of the First Amendment.”
Constitutional scholars believe Justice Anthony Kennedy, the remaining moderate on the court, will cast the decisive fifth vote in what is likely to be a 5-4 decision. For conservatives, especially members of the religious right, the case is easy: The right of religious conscience and expression must always prevail when weighed against the evil of the LGBT lifestyle. For progressives, including members of the LGBT community, the case is easy: The equal rights of the LGBT community must prevail when weighed against religious ignorance and bigotry. In today’s age of contentious partisanship, conservatives and progressives alike disparage the other side, pretending they are battling for good against evil and ignorance.
Fortunately, Kennedy is a moderate who takes both rights seriously. During oral argument in the case, Kennedy noted, “Tolerance is essential in a free society. Tolerance is most meaningful when it’s mutual.” For moderates, like Kennedy, the rights of others, even those with whom they may disagree, must be accorded respect. The Constitution, civility and human decency demand as much.
In oral argument, Kennedy rightly recognized that members of the LGBT community have long been discriminated against in vicious ways. Kennedy also feared that if the court decides for the baker’s right of conscience, it will constitute “an affront to the gay community,” a pretext for discrimination. Kennedy understands that the rights of the LGBT community go to the very essence of their self-definition, of who they are. Refusing to serve the gay couple constitutes humiliation and disrespect of the highest order.
Kennedy was equally sensitive to the rights of conscience of the baker. Just as members of the LGBT community define themselves based on their sexual orientation, religious individuals define themselves based on their duty to God, a duty that transcends self-interest and defines their soul. Kennedy rightfully chided the Colorado Civil Rights Commission and the state of Colorado for failing to weigh those rights in the balance. Kennedy recognizes that the state should walk tenderly, if at all, when it takes one’s conscience or duty to God, their soul. A taking of what Madison referred to as the “most sacred of all property,” conscience, also constitutes humiliation and disrespect of the highest order.
It is likely Kennedy will see a fair way out of this conflict. The state of Colorado has placed its stamp of approval on the side of equal rights for the LGBT community, in legislation and the decision of the commission. James Madison and members of the founding generation believed that whenever the majority tyrannizes a minority, a right is being unjustly taken by government. In such cases, the court must intervene to protect the rights of the minority, as it has done in the past when it protected the rights of the LGBT community against the majority. If Colorado is permitted to take the baker’s right of conscience and business, without any compensation, it is engaging in a miscarriage of justice, especially when the gay couple may buy the cake elsewhere.
The best long-term resolution of this conflict is, however, legislative. The generally conservative state of Utah adopted a fairness-for-all solution, which was praised by the generally progressive Boston Globe. Utah placed its imprimatur on the right of equality based on sexual orientation by adopting very progressive protection for the LGBT community. In turn, Utah recognized an exemption based on the right of religious conscience and expression. Despite fears that the exemption would provide a pretext for widespread discrimination in the public square, few have exercised their right of conscience. We can displace rancor and fear with respect for others.
Rodney K. Smith is the director of the Center for Constitutional Studies at Utah Valley University, with dear friends and family on both sides of this issue. The views expressed herein are his own and are not attributable to his employer.