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The Culture War’s Latest Battlefront: The 1st Versus The 14th Amendments (Forbes.com) October 18, 2017

Posted by daviddavenport in Op/Eds.

The culture wars of recent decades have largely pitted a growing secularization of America against its more traditional Christian culture.  The secular left has sought to push religion out of the public square—whether from schools, or over public monuments, or in public expressions (coins, pledges, holidays).  Meanwhile the religious right has pushed back, becoming a major political and legal force.  The culture wars are a series of battles in elections, legislatures, executive offices and the courts.

But a new and important battleground is emerging as a clash between the rights to the free exercise of religion and free speech of the First Amendment to the Constitution with the growing civil rights protections afforded under the equal protection clause of the 14th Amendment.  Battles over conflicting constitutional rights are especially difficult, with few easy answers and none that will satisfy everyone.

For example, two federal departments recently announced changes in federal policy that enhance religious rights, with the Department of Health and Human Services rolling back a requirement that employers must offer birth control coverage in their health insurance plans if they violate religious principles.  Meanwhile the Justice Department eased Obama-era limitations that prevented religious organizations from faith-based preferences in employment decisions.  House Speaker Paul Ryan called the changes “a landmark day for religious liberty” but others said they were a license to discriminate.  A liberal president had pushed in one direction and a more conservative administration pushed back.

A similar issue is raised in a case to be heard before the US Supreme Court this fall involving a Colorado baker who refused to decorate a wedding cake for a gay marriage because it was against his religious beliefs.  The baker asserts his 1st Amendment rights to the free exercise of religion and speech while a state law banning discrimination by public businesses claims this amounts to civil rights discrimination.  The lower court decisions have gone against the baker, but the Trump Justice Department has filed a brief in favor of his free expression of religious principles.  Many predict a 5-4 Supreme Court decision, with Justice Kennedy left to choose between two rights he favors:  gay marriage under the 14th Amendment and free speech under the 1st.

Once the Supreme Court makes a decision such as in the Obergefell gay marriage case, the implications can play out for years in the courts.  A case in Arkansas, for example, raised the question whether listing both same-sex parents on the birth certificate was legally required (no, said the Arkansas Supreme Court, later reversed by the US Supreme Court).  The Texas Supreme Court recently ruled that same-sex spouses of government employees need not be provided benefits.

The clash between the 1st and 14th Amendments in these matters is more of a dilemma to be managed than a problem to be solved.  Both religious and free speech rights are fundamental and receive special protection under the 1st Amendment.  Gay and transgender rights are newer but nevertheless protected under the 14th Amendment now.  Given the conflict between two core rights, neither can be absolute—some balance or accommodation must be found.

There are plenty of bad ideas out there for managing this dilemma.  New York Times columnist Frank Bruni’s suggestion was that Christians must now “[bow] to the enlightenments of modernity,” effectively turning their backs on an ancient yet living faith.  On the other hand, it should not be the case that a Christian running an ordinary business may decide to exclude certain classes of customers.

Although it would be better for society as a whole if the people and their elected representatives, rather than the courts, were creating new civil rights, in the end perhaps only courts can provide the delicate balance needed to manage the dilemma between 1st Amendment and 14th Amendment rights.  It will be a mighty task—we’ll have a chance to see this fall whether the high court is up to it.

To view the column at Forbes.com:


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