BIDLACK | What to do when rights collide? Over a wedding cake, for example
Author: Hal Bidlack - June 8, 2018 - Updated: June 8, 2018
Back when I was teaching political science at the Air Force Academy, about half way through the course we’d come to a lesson on the Bill of Rights and the conflicts inherent therein. I’d introduce the subject by asking my students about a hypothetical employer, who manufactured and sold the most neutral and non-political product I could think of – thumb tacks.
I posited to my students that this employer needed workers who were able to carry 100-pound boxes of tacks to load the trucks. I asked my students if it was discrimination for the employer to refuse to hire people who could not carry said boxes. The students always agreed that such an employment requirement was reasonable and not discriminatory.
I furthered the example by next saying that this employer, a good and fair man, noted that far more men than women were able to carry the boxes, so he had decided to only interview men for any job opening, to save time. My students were troubled by this, but most did agree that while not entirely fair, it wasn’t a huge violation of fair employment rules to ban women. They were wrong, but that’s a different essay.
Next, I further escalated the hypothetical by saying that for odd market reasons, thumb tacks had to be shipped on Friday evenings, so the employer also refused to interview anyone from certain religions, who might have spiritual objections to working on Friday nights. At this point, with few exceptions, the cadets broke with the employer, and said that last one was an unreasonable restriction on the rights of potential employees. Yet there were always one or two students who thought an employer should be able to hire whomever he or she wished, period, without the government sticking its nose in.
I was reminded of that lesson on rights in conflict recently by the Supreme Court decision on the Lakewood baker.
Like most important questions in life, this legal question is not obviously one thing or the opposite. Such questions exist on a continuum. When teaching a lesson on religious freedoms, I asked my students if my imaginary one-person church – the Church of Me – had the right to, say, sacrifice bacteria as part of a religious service. No one objected to killing bacteria. I stepped it up a notch when I asked about killing crickets – again, few students objected. Next, I asked about sacrificing Golden Retriever puppies (yes, I did try to press my student’s thinking – no actual puppies were hurt during this thought exercise) and they were suitably shocked and most objected. And, thank goodness, no student ever thought human sacrifice was legal for religious reasons.
Which, of course, brings us back wedding cakes…
The point I tried to make to my students is that much of what the Supreme Court must decide, and which Congress and the president debate, are issues involving fundamental rights that are in conflict with other seemingly fundamental rights. And in the case of the Lakewood baker and his right to follow what he thought were his religious requirements conflicted with the right of a same-sex couple to not be discriminated against in business. These cases are rarely, if ever, as simple as the examples I gave my students. They are complicated and conflicted, which is how they ended up in the Supreme Court.
The decision by the court didn’t even settle the matter. The court basically ruled that in this one and only case, the Colorado Civil Rights Commission messed up, but the opinion, written by the so-called swing voting Justice Kennedy, specifically stated that while religious convictions must be considered, so too must the rights of gays. And so, both sides can claim some level of vindication as well as frustration. Future cases will no doubt wind their way to the Supreme Court for perhaps a more complete statement on this conflict between rights.
The late Supreme Court Justice Oliver Wendell Holmes, Jr., is attributed with saying what may be the most succinct and pure way to express the problem of rights in conflict. Justice Holmes said, “Your right to swing your arm ends where my nose begins.” Thus, the issue is often not about who is right or wrong, but rather, about whose nose is where, and who is swinging an arm. Sometimes that arm hits a nose and apparently sometimes, a wedding cake. Stay tuned.