Law & the Courts

A Constitutional Amendment for Gay Rights?

(Joshua Roberts/Reuters)
The goal is to limit a religious minority’s conscience rights.

The gay-rights movement has been on an impressive winning streak. Over the past two decades, full acceptance of those who identity as LGBTQ, as well as of marriage equality, spread from the precincts of popular culture to the courts and now, as polls have shown, to a general sense that these issues are settled. Gay marriage is the law of the land, and no one turns a hair when gay politicians reach high office or even are appointed to posts in a conservative Republican administration.

Seen from that perspective, the decision in Masterpiece Cakeshop v. Colorado Civil Rights Commission — finding that the commission illegally discriminated against a Christian baker who’d refused to make a cake for a gay wedding — is, at worst, a speed bump for gay Americans. It was made on relatively narrow grounds. And even if it does wind up carving out space for a religious-conservative minority to escape being forced to take part in celebrations of events their faith opposes, it in no way diminishes the reality of gay equality in 21st-century America.

Yet the view of Masterpiece from the left is that it must be overturned.

The answer from one source was logical as well as revealing. Barnard College professor Jennifer Finney Boylan wrote in the New York Times to call for a “Dignity Amendment” to the Constitution: “Equality of rights under the law shall not be abridged by the United States or by any state on account of sex, sexual orientation or gender identity.” She also writes that gays “would be helped” by adding sexual-orientation protections to the Civil Rights Act of 1964, which prohibits businesses from discriminating on the basis of race.

Such changes would effectively eliminate the debate over how to balance the rights of gays with the right to religious liberty.

Instead of celebrating recent advances as incremental but lasting changes in American society, Boylan, like the couple that sought to punish Phillips, sees any remaining resistance — even in the most limited form, from what must be acknowledged as a religious minority — as somehow invalidating the freedom and acceptance the gay community enjoys. The mere idea that the courts are attempting to balance the rights of what is now the pro-gay-rights majority with those of a religious minority that opposes gay marriage is intolerable to her. It’s not enough to have won equal rights; those who disagree must be banished from decent society and the public square.

Boylan sees her proposal as an extension of the recently renewed effort to pass the Equal Rights Amendment, which promised full equality for women. Not enough states ratified the ERA before the deadline set in its text (1979, later extended to 1982) expired, and several states that did ratify it tried to take back their blessing. But thanks in part to a revived interest in the issue as a result of the #MeToo movement, two more states have passed it since last year. If another follows suit a legal showdown may be in store, as it’s unclear whether the Constitution allows Congress to put deadlines on the amendments it proposes, or states to rescind the endorsements they’ve given.

The main argument against Boylan’s Dignity Amendment, as with the ERA in the 1970s, is the idea that equality for all persons under the law is already guaranteed by the 14th Amendment. But the Dignity Amendment wouldn’t be purely redundant, as its clear goal — especially if paired with changes to federal civil-rights laws —would be to recast the free-exercise clause of the First Amendment as a limited provision protecting private worship.

Kennedy’s majority ruling in Masterpiece focused on dignity in a way as well — specifically, on protecting the dignity of religious dissenters in addition to the dignity of gays. But Boylan is so uninterested in the question of how to accommodate minority religious beliefs on gay rights that she never even mentions the issue in her piece. In that context, it’s hard to see an attempt to overturn Masterpiece by amendment as anything but a direct assault on the First Amendment.

Up until now the gay-rights movement has swept all before it.

At first glance, passing a constitutional amendment seems like a pipe dream. But given the enormous support the gay-rights movement has been able to muster in the world of pop culture and in the Democratic party, it is not entirely unreasonable to think that some sort of mass gesture along these lines will be coming.

For those who care about religious liberty, then, the stakes may be just as high in the midterm elections this fall as they were in the 2016 presidential election. President Trump was able to count on the loyal support of Evangelicals and other religious conservatives because they saw his election as the only way to stave off the appointment of more liberal judges who would drive people of faith from the public square. Though he lacked both religious convictions and a record of fidelity to political principles, they had faith that he would keep his pledge to back them. With the appointment of Justice Neil Gorsuch and the many lower-court judges whose confirmations have been pushed through by Majority Leader Mitch McConnell, Trump has kept his promises to them.

But with — to Boylan’s sorrow — the right to free expression for believers still up for debate, the need for Republicans to retain control of the Senate is clear to conservatives and others who wish to preserve the First Amendment.

Up until now the gay-rights movement has swept all before it. There is no going back on gay rights, but the rights of believers can’t be left to the whims of the Supreme Court. Though liberals and what’s left of the Never Trump movement deride support for Trump as a betrayal of Republican principles, it would appear that maintaining his presidency and the GOP Senate majority is going to be a must if conservatives are to preserve any dignity for those who cling to faith.

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