Prof warns of ‘theocratization’ of Constitution by conservatives

A Columbia University professor recently claimed that conservatives’ belief in “natural law” is leading to a “radical theocratization of the Constitution.”

Professor of Law, Gender, and Sexuality Studies Katherine Franke, who also serves as the director of the Center for Gender and Sexuality Law at Columbia, voiced her criticism of the conservative approach to constitutional law during a June 4 interview with Columbia News.

When asked what was at stake “in the tension between religious liberty and LGBTQ equality,” the academic referenced the recent Supreme Court case Masterpiece Cakeshop v. Colorado Civil Rights Commission, asserting that some people “view religious liberty rights as more fundamental than any other rights, and thus should occupy the top tier of constitutional protection.”

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“The rights of LGBTQ people, women, people of color, and others, in their view, should yield when in conflict with religious liberty,” she continued, adding that “this approach to constitutional law derives from something we call ‘natural law’—that no man-made law can be superior to God’s law.”

According to the scholar, this interpretation “amounts to a radical theocratization of the Constitution, a document that was intended to be an adamantly secular social contract.”

“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,” Frank noted, claiming that “They 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.”

The interview focused on the Supreme Court’s decision in Masterpiece Cakeshop v. Colorado Civil Rights Commission earlier this month, in which the Court ruled 7-2 in favor of Masterpiece and its owner, Jack Phillips, who had refused to bake a wedding cake for a same-sex couple based on a religious objection to same-sex marriage. 

Despite being critical of conservatives, Franke took the opportunity to praise a part of the decision for its “soaring language recognizing the importance of gay rights” and cited a portion of the majority opinion written by Justice Anthony Kennedy, who “framed the issue as one of state-based discrimination against people who hold particular religious views, not as about the rights of same-sex couples or LGBTQ rights more generally.”

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Franke did not immediately respond to Campus Reform’s request for comment, but Jim Campbell, senior counsel and director of the Center for Cultural Engagement and Scholarship at Alliance Defending Freedom, told Campus Reform that 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. 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. Cases like Jack’s are, first and foremost, about artistic and expressive freedom,” he said.

“Respecting the artistic freedom of people like Jack 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 added. “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. Creative professionals who operate like that, whether their sincerely held beliefs are religious or secular in nature, should not be punished. Instead, their expressive freedom should be protected.”