Freedom of Religion?

June 4th’s Supreme Court decision in the Masterpiece Cakeshop case is a disgrace. The Court ruled 7-2 in favor of shop owner Jack Phillips, who refused to bake a wedding cake for David Mullins and Charlie Craig in 2012. Justice Anthony Kennedy penned the majority opinion, joined by Justices Kagan, Roberts, Breyer, Alito, Gorsuch and Thomas:

“The Colorado Civil Rights Commission’s consideration of this case was inconsistent with the State’s obligation of religious neutrality. The reason and motive for the baker’s refusal were based on his sincere religious beliefs and convictions. The Court’s precedents make clear that the baker, in his capacity as the owner of a business serving the public, might have his right to the free exercise of religion limited by generally applicable laws.”

The majority ruled that Phillips’s denial of service to Mullins and Craig is protected under the First Amendment’s free-exercise clause because he did so on religious grounds. Justice Ginsburg, joined by Justice Sotomayor in dissenting, demolishes that argument in a single sentence:

“When a couple contacts a bakery for a wedding cake, the product they are seeking is a cake celebrating their wedding — not a cake celebrating heterosexual weddings or same-sex weddings — and that is the service Craig and Mullins were denied.”

She is absolutely right, but I think she’s missing the point.

The focal point of this case is, of course, the First Amendment, which guarantees Americans the fundamental rights known as the Five Freedoms: religion, speech, press, assembly, and petition of the government for a redress of grievances. They should really come up with an acronym for that last one.

But nowhere does First Amendment declare that these rights are unlimited. Freedom of speech did not absolve Martin Shkreli of criminal charges for Tweeting that he would pay $5,000 to anyone who could get him a lock of Hillary Clinton’s hair. Freedom of the press does not mean news organizations can publish libelous stories without legal ramifications. Freedom of assembly does not justify protests that turn violent. And the fact that Americans are free to practice any religion we choose does not give us the right to make human sacrifices in the name of Zorp the Lizard God — or to refuse service to a couple due to their sexual orientation.

Nowhere in its text does the Constitution guarantee unlimited freedom, nor should it. The underlying purpose of the Constitution is to protect the well-being of the American people, and too much freedom does not help achieve that goal. We can see this in the 96 gun deaths that happen every day. The true message of the First Amendment is that the state cannot infringe upon certain basic rights until those rights start doing harm. I admit the Constitution does not bear that qualifier in its text. But should that really matter?

As it stands, every Supreme Court decision must be justified with a sturdy interpretation of the Constitution. That means any human-rights issue that goes through the Court must be supported somehow in the Constitution’s text if an oppressive law or institution is to be struck down. I think that’s a problem.

I’m no First Amendment specialist, and as such I’m not qualified to debate Kennedy or any of the other justices on their interpretations of the Constitution. I do, however, feel obliged to debate the validity of the Constitution itself.

I admire the U.S. Constitution — very much so. It was one of the most innovative and democratic in history when it was ratified in 1788, inspiring revolution and the rise of popular sovereignty throughout the globe. Today it is equally if not more impressive given that it is the oldest standing constitution in the world. In 230 years it has been amended 27 times, but never replaced.

But it is not perfect. The third clause of Article 1, Section 2 of the Constitution reads “Representatives and direct Taxes shall be apportioned among the several States which may be included within this Union, according to their respective Numbers, which shall be determined by adding to the whole Number of free Persons, including those bound to Service for a Term of Years, and excluding Indians not taxed, three fifths of all other Persons.”

This clause, known as the Three-Fifths Compromise, was nullified in 1865 with the ratification of the 13th Amendment, but that does not make it any less disgusting that the Constitution, in its original form, counted slaves as three-fifths of a human. The fact that the Constitution has such blatant racism nestled in its text should immediately shut down the traditionalists argument that it is some sort of Messiah among founding documents, and that it should be followed in its current state until the end of time.

According to Article Three of the Constitution, the role of the judicial branch is as follows:

“The interpretation of the laws is the proper and peculiar province of the courts. A constitution, is, in fact, and must be regarded by the judges, as a fundamental law. It therefore belongs to them to ascertain its meaning, as well as the meaning of any particular act proceeding from the legislative body. If there should happen to be an irreconcilable variance between two… the constitution ought to be preferred to the statute”

Simply put, the Supreme Court’s job is to strike down or uphold a given law depending on whether the justices determine it is constitutional or not. That, in my opinion, makes the judiciary the most inherently counterproductive branch of American government. Evaluating laws based on their adherence to a flawed, 230-year-old founding document is an arbitrary, and more importantly nonscientific, means of regulating the legislature. I propose that, instead, laws be upheld or struck down depending on whether they help or hurt the well-being of the general public.

Take guns, for example. Especially considering Brett Kavanaugh will likely be confirmed and give the Court a firm conservative majority for the foreseeable future, we could before long see gun safety measures being struck down all across the country. Will that help the American people? Not in the least. Will such decisions be in accordance the Constitution? That depends on your interpretation of the Second Amendment. Soon, five ninths of the Supreme Court will say yes.

I realize this is a dangerously vague proposal, but there are ways to quantify the impact of a given policy on the American people, and it would transform the Court into a far more practical institution. It is a subjective idea, but not nearly as subjective as nine people with their own agendas interpreting the Constitution as they see fit, often with disastrous consequences for too many people.


One thought on “Freedom of Religion?

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  1. What an interesting read! A good, new perspective on the court. But I might disagree with the claim at the end that the court ought not rule on constitutionality – it’s always been my belief that the constitution is the supreme law of the land until it is amended, in which case the full, amended version becomes supreme law. Yes, the racism is troubling, which is why the way to adapt in modern times is to amend. Keep in mind that the first amendment is, in fact, an amendment and we treat it as part of the original text. If we don’t like how the court is bound to rule a certain way, it’s a wake-up call to our legislators to call for an amendment. Granted, this is all idealistic


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