For Discussion Only . . . A Constitutional Conundrum

Let us first define what we are going to discuss. “Gay marriage” is people of the same sex entering into a civil or religious union. There is a difference between two people of the same sex getting married and people of the same sex not receiving service in a commercial establishment.

Therefore, the issue before us is simply the First Amendment protections of religious liberty and freedom of expression versus the Fourteenth Amendment’s anti-discrimination language.

The First Amendment states that “Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof ; or abridging the freedom of speech . . .”

The Fourteenth Amendment states in part that, “No State shall make or enforce any law which shall abridge the privileges or immunities of citizens of the United States; nor shall any State deprive any person of life, liberty or property, without due process of law; nor deny to any person within its jurisdiction the equal protection of the laws.”

Therefore, the issue is not gay marriage but whether the federal government, by relying on the Fourteenth Amendment, is essentially enforcing a secular religion in violation of the First Amendment. By establishing a secular government through the Constitution, the government is prohibiting the free exercise of religion of Christians, et. al., violating the First Amendment and turning the Constitution into some sort of home-grown Sharia law.

In Oregon, a baker refused to bake a cake for a same-sex wedding. The baker had previously sold a cake to the lesbian, who purchased it for her mother. This time, the cake was for a same-sex wedding. The baker stated that he was simply living in accordance to his religious beliefs. The State of Oregon found the baker guilty and fined them $135,000; the State may have violated the First and Fourteenth Amendments in the process.

The bakery closed in September 2013, moving to an in-home bakery. If what it takes to protect the First Amendment rights of faith-based people is for commercial establishments to close their doors to the public and turn themselves into a private entity based on membership, members of the LBGT community will have isolated themselves. All any business has to do is have a sign that says members only.

In the example we use, the baker did not discriminate on the basis of race, ethnicity, nationality, disability, sexual orientation, gender identity, religion or political opinion. The baker based his decision on the “lifestyle” of the lesbian, who admitted the cake was for a same-sex wedding. By introducing the “same-sex” wedding into the conversation, she disclosed her particular lifestyle.

Should a same-sex couple force a cake designer to produce a certain design against his religious conviction demanded by a same-sex couple? What if the demanded design is of a sexual nature? What about a photographer who refuses to do a photo shoot of a gay wedding? The photographer did not want to tell the stories of same-sex weddings. To force the photographer or cake designer to celebrate something that is a religious wrong, in their eyes, would violate their freedom of expression.

By extension, take any occupation that has at its core fundamental freedom of expression. Should the government force actors and actresses to perform roles with which they are uncomfortable? What about a painter or tattoo artist? Would it then be permissible to force members of the LGBT community to do things they would be uncomfortable doing?

Neither the courts nor Congress can nullify the First Amendment through the Fourteenth Amendment. If there is a conflict between the two amendments, Congress must go back to the source of the conflict and remove it. No part of the Constitution can contradict any other part.

“Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof . . .” The First Amendment is inviolable on this issue. But who decides what is or is not religion? The government does. And Congress can establish an ideology that is not a religion per se: a secular religion.

The Constitution does not protect the people from ideologues who want to ram specific secular doctrines into our daily lives. Only lawyers and judges can supply this protection. However, religious freedom and non-discrimination are both Central American values. Resolving the conflict between these two values does not have to be a gain for one side and a corresponding loss for the other side, i.e., a zero-sum game.