What happens when your constitutionally protected right clashes with another person’s protected right? The unending dialectic of conflicting rights under the U.S. Constitution’s First Amendment was on display yet again in a recent U.S. Supreme Court opinion involving freedom of religious expression.
The Supremes reversed Colorado courts which had ruled a baker unlawfully discriminated against a gay couple by his failure to agree to bake a wedding cake for the couple because, the baker asserted, such act violated his religious belief against gay weddings.
In a 7-2 decision, the SCOTUS majority found that the seven-member panel of the Colorado Civil Rights Commission originally handling the complaint filed by the couple showed “hostility” toward the baker’s religious freedom arguments and thus was not a “neutral” decision maker.
But the majority did not rule that the baker had an absolute right to discriminate against the gay couple based on his religious belief. The court, in effect, passed the buck.
It sent the case back to the Colorado Civil Rights Commission for a start-over and re-review of the matter so as to take into account the baker’s federal First Amendment right of religious expression.
Needless to say, the decision was disappointing to both gay-right proponents and opponents.
When interpreting individual rights under the federal Constitution, courts are constantly using a balancing test. No one has an unlimited right of expression under the First Amendment. Nor an unlimited right to bear weapons under the Second Amendment. Nor to be free of all searches and seizures under the Fourth Amendment. And so on.
Time, manner and place restrictions on expression have long been used by courts to achieve a balance between conflicting expression. Yes, one has a freedom of expression. But to use it to lie about somebody so as to ruin their business, their reputation? The law calls that defamation, and you can’t do that.
Another example is that restrictions have long been enforceable against abortion clinic protesters by requiring them to remain a certain distance from clinic entrances so as to not interfere with persons entering or leaving the clinics. The protesters wanting to end abortion are allowed to express their belief on the sidewalks. But they must do so without interfering with the clinic’s furtherance of its right to conduct business.
Three years ago, the Supreme Court ruled that gays and lesbians have a federal constitutional right to be married and no state may prohibit that. The Supremes have also noted that religious ministers might not be forced to officiate such marriages if their religious expression would be so injured.
For gay-right proponents, the troubling thing about the recent Colorado baker case is that SCOTUS passed on the opportunity to recognize LGBTQ persons as having a fundamental, unfettered federal equal protection right (14th Amendment) to be free from discrimination in the use of public accommodations — much as race, religion, color, ethnicity or national origin is protected.
Let them eat cake was the rally cry.
You can’t have your cake and eat it too was the Supreme Court’s response.
For the moment.
Brett Kepley is a lawyer with Land of Lincoln Legal Assistance Foundation. You can send your questions to The Law QA, 302 N. First St., Champaign, IL 61820. Questions may be edited for space.