Title

The Need for Principled Balancing When Constitutional Values Collide

Document Type

Article

Publication Date

11-16-2018

Publication Title

Scholars Strategy Network

Keywords

U.S. Constitution, religious freedom, equality, First Amendment, Fourteenth Amendment, Obergefell v. Hodges, Masterpiece Cakeshop, Religious Freedom Restoration Act (RFRA), constitutional balancing

Abstract

Two of the most important values protected by the U.S. Constitution are religious freedom and equality before the law. Religious freedom was included in the Constitution as part of the First Amendment; equality before the law was added after the Civil War as part of the Fourteenth Amendment. For nearly 150 years, the two lived side-by-side without much interruption.

That constitutional harmony was interrupted by the aftermath of the Supreme Court’s 2015 decision of Obergefell v. Hodges, which announced a constitutional equal right to same-sex marriage. Assertions of religious freedom and equality began to clash. Vendors asked to serve same-sex weddings—florists, photographers, wedding-cake bakers and others—cited religious freedom as basis for their right to refuse providing services. Same-sex couples, in contrast, cited equality as basis for their right to demand purchasing services in the open market just like any other couple. In the only case the Supreme Court was willing to hear so far—the wedding-cake baker case—the Court punted, refusing to reach a principled result (Masterpiece Cakeshop). In particular, the Court refused to balance the competing constitutional values. This brief suggests why avoiding constitutional balancing may have been a mistake and how the court could have handled it differently.

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