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Prof warns conservatives ‘theocratizing’ Constitution

CONSTITUTION

The belief held by “ideological conservatives” that certain fundamental rights are granted by God is leading to a “radical theocratization of the Constitution,” contends a professor at Columbia University in New York City.

Katherine Franke, professor of law, gender and sexuality studies, and director of the Center for Gender and Sexuality Law at Columbia, issued her complaint in a June 4 interview with Columbia News that touched on the U.S. Supreme Court’s recent Masterpiece Cakeshop decision, reported Campus Reform.

“Ideological conservatives have been committed for generations to the idea that government cannot, indeed may not, tell business owners who they can serve and how,” she began.

Columbia University Professor Katherine Franke

Columbia University Professor Katherine Franke

Asked what is at stake “in the tension between religious liberty and LGBTQ equality,” she said some people “view religious liberty rights as more fundamental than any other rights, and thus should occupy the top tier of constitutional protection.”

She referenced the Masterpiece decision, which held that while cake designer Jack Phillips was bound to serve any customer, he had a right to refuse – based on his religious beliefs – a homosexual couple’s request to make them a wedding cake.

In the view of conservatives, Franke said, the “rights of LGBTQ people, women, people of color, and others” should “yield when in conflict with religious liberty.”

She said “this approach to constitutional law derives from something we call ‘natural law’— that no man-made law can be superior to God’s law.”

This interpretation, said Franke, “amounts to a radical theocratization of the Constitution, a document that was intended to be an adamantly secular social contract.”

She said “ideological conservatives” are “using religion-based resistance to same-sex marriage in order to weaken the larger national commitment to enforcing non-discrimination laws in business settings.”

Campus Reform quoted Jim Campbell, senior counsel and director of the Center for Cultural Engagement and Scholarship at Alliance Defending Freedom, insisting the Masterpiece case is not so much about religious liberty as freedom of expression.

“Artistic freedom is a right that belongs to all Americans under the First Amendment,” he said. “Just as Jack shouldn’t be forced to create art that celebrates a view of marriage at odds with his conscience, a lesbian graphic designer shouldn’t be forced to design a religious group’s flyer opposing same-sex marriage.”

The Declaration of Independence is rooted in the concept espoused by the Founders that there are certain “inalienable,” or natural, rights granted by God that governments can only recognize, rather than grant, which include “life, liberty and the pursuit of happiness.”

Campbell maintained that respecting the artistic freedom of people such as Phillips “does not undermine the legitimate role of nondiscrimination laws.”

“Jack serves all people; what he doesn’t do is create custom cakes that celebrate events or express messages in violation of his conscience,” Campbell said.

“In fact, when Jack told the gentlemen who sued him that he was unable to design a cake to celebrate their same-sex marriage, he offered to sell them anything else in his shop or to create a cake for them for a different occasion.”

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