Conflicting Rights

Same-sex couples are entitled to get whatever wedding cake that they crave at the bakery of their choice. It's the law. And that right – one they have always had – was granted them as well by our nation when it was founded. The baker has no say in the matter.

Our first document as a new nation – indeed, the one that made us a new nation – the Declaration of Independence, listed both the quarrels we had with the British King and Parliament, and the principles for which we stood. It clearly stated that “all men are created equal.” Not only that, but that they were “endowed by their Creator with certain unalienable Rights” and among them was the right to “the pursuit of Happiness.” What else could the Founding Fathers have had in mind but that two men had the right to marry, and they were entitled to whatever wedding cake they wanted from whatever source they selected. It didn't matter what flavor icing they preferred or to have flowers, if they had a yen for them. They could even have two grooms on top (or, for women, two brides – a Constitutional amendment and court decisions have asserted that whatever men can do – as long as it is not proscribed by physical constraints – women can do as well). They were entitled. It was their right. (It's not even explicit Constitutionally that they're required to pay for it, though that is the subject of local laws.) And their Creator was in full agreement, having personally endowed men with the right.

At least that was the initial view of those eighteenth century pundits. They subsequently wrote a Constitution, a plan by which our new nation would function, and appended to it a Bill of Rights which spelled out the limitations under which our government would operate. In that listing, however, they omitted same-sex marriage, while making it forever unmistakable that we possessed the right to practice our religion as we saw fit, and without the interference of that government. That was the first right delineated. It was fundamental to our new republic, and central to our values. Governments had no right to specify where the Creator stood on any matter, nor had the Creator any right to decide right and wrong.

But the courts, as opposed to the Creator, have such a right; they have not only found the “right” to same-sex unions in the Constitution (they had to “find” it since it is nowhere mentioned in the document), but that such a right takes precedence over our government's specified obligation to abstain from interference in the “free exercise” of their citizens' religions. There are instances when rights are in conflict. And the Judiciary has assumed the responsibility to decide what is more important.

Of the three branches of government, the Judiciary was seen by the founders as least important, and its description, in Article III of the Constitution, is the shortest. Over the years, with no protest from the Legislative and Executive branches, although they are (in that order) supposed to hold the real power, the Judiciary arrogated the power. So the courts can decide that the “right” to abortion is more important than the use of speech (irrespective of what you thought, it isn't really protected by the First Amendment) to warn of possible consequences.

In addition to informing us as to which rights are most significant, the courts can also tell us whose rights take precedence. For example, the right of free speech guaranteed, for the courts, the right of Nazis to march through Skokie, Illinois, a city with a majority Jewish population including many Holocaust survivors. How the residents felt was not relevant. On the other hand, “hate” speech, which may hurt someone's feelings, is impermissible. And an individual with “gender dysphoria” – with the DNA of one sex but a preference for the other – may choose what bathroom to use. It doesn't matter, according to court opinions, if those who properly use that bathroom object. Their rights are trumped by those of the dysphoric individual.

The problems are not simple. There may be no agreement on the issues, but there isn't even agreement on the criteria to be used. Should the justices rely on the Founders' words or what is thought to have been their intent? To what degree is precedent controlling? What is the significance of public opinion and current fashion? Should the Justices base decisions on their own views? Sometimes they aren't even clear what their own views are. Justice Potter Stewart, in an opinion on a cinema pornography case, said

I shall not today attempt further to define the kinds of material I understand to be embraced within that shorthand description ["hard-core pornography"], and perhaps I could never succeed in intelligibly doing so. But I know it when I see it (emphasis added), and the motion picture involved in this case is not that.

It may not have been clear enough as a basis for future opinions, but it was honest. (Supreme Court) Justices and (Lower Court) judges are often subjective in their judgments, and there are times when their view does not reflect what most people consider to be wise, or to be based on American law and tradition. When matters so basic to American society are involved, some form of review mechanism would be sensible.

The Constitution was written in the name of “We the People.” Changes in it must be approved overwhelmingly by Congress and the States. In selected cases it would make sense to bring Congress and the People into the conversation. Whether that would mean the [binding?] expression of opinion on specific issues, or simply exist simply for the purpose of guiding our representatives on the larger questions of the day isn't clear. Perhaps the People should have input to questions of majority versus minority rights, or the relative strength of the branches of government, or the relationship of the states and the Federal government. The distribution of power is certainly something that the People ought to weigh in on, since perceived abuse of power was one of the primary causes for them to want “to form a more perfect Union.” It's important that some of the power be returned to those in whose name it is being exercised. I'm sure that if we're determined we can find a way to do so. The People have rights, too.

Next episode: “Below The Beloit” – Well, did you ever?