Law Professor Doesn’t Understand the Constitution or Artistic Liberty

The recent Supreme Court Masterpiece Cakeshop v. Colorado Civil Rights Commission decision has many Leftists worried and saying absurd things:

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. (Campus Reform)

She does not like the view that “religious liberty rights” are “more fundamental than any other rights, and thus should occupy the top tier of constitutional protection.” It’s not only religious liberty rights that are more fundamental than the Constitution, otherwise, the Constitution wouldn’t have a Bill of Rights that protects freedom of religion and speech and other extra-constitutional rights. Moreover, unlike the French Declaration of the Rights of Man, there is no need to list our rights in order to have rights.

The Constitution doesn’t have much law in it. For example, there are no prohibitions against murder, rape, or theft in the Constitution. It assumes an existing body of law. The Declaration described these laws as “the Laws of Nature and Nature’s God.” If Katherine Franke wants to argue against history, she is free to do so. But she’ll lose. Natural Law was the basis for law in early America, and much of that Natural Law was based on the Bible.

Homosexuality was described as “against nature” by the founders. Even a person who did not believe the Bible’s declaration that same-sex sexuality was “unnatural,” literally, “against nature” (Rom. 1:26-27), their study of nature and the rudiments of biology were enough to tell them that it was.

Homosexuality and bestiality were described as “detestable and abominable and “contrary to the very Light of Nature.” This was not a minority opinion.

Sir William Blackstone, jurist, law professor, political philosopher, and author of the Commentaries on the Laws of England (1765-1769), described “buggery” (that included homosexuality) as “the infamous crime against nature, committed either with man or beast….”

Blackstone’s commentaries were admired and used by America’s Founding Fathers.

Most people, as reported by Apologetics Press, “would be shocked to learn that Thomas Jefferson advocated ‘dismemberment’ as the penalty for homosexuality in his home state of Virginia, and even authored a bill to that effect (1781, Query 14; cf. 1903, 1:226-227).”1

Katherine Franke wants an open-ended definition of right and wrong that she and others like her can control the narrative. If there is no “law above the law,” then whoever’s in power is the law. At the Nuremberg Trials, “Robert H. Jackson, Chief Counsel for the United States at the Trials, was compelled to appeal to permanent values, to moral standards transcending the life-styles of particular societies — in a word, to a ‘law beyond the law’ of individual nations, whether victor or vanquished.”2

No one should be forced to support a view they don’t want to support. This means that a bakery or printing company owned by homosexuals should not be forced to make a cake denouncing same-sex marriage or t-shirts opposing Gay Pride month to wear at a Gay Pride parade.

Like so many homosexuals and those who support their twisted ideology, Katherine Franke is misstating the issue:

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. 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 Masterpiece Cakeshop case is not about refusing service to homosexuals. Who goes into a bakery and says, “I’m a homosexual. Bake me a cake.” No, the issue was the message on the cake. Jack Phillips has made it clear on numerous occasions that he has refused to make certain types of cakes because of their message that has nothing to do with homosexuality. No one ever sued him for not making a Halloween cake.

Every business should be free not to accept business from a client whose message is unacceptable to that business. A video company owned by people who are opposed to abortion should not have to make a video supporting abortion and vice versa.

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.”

  1. Jefferson, Thomas (1781), Notes on the State of Virginia, The Avalon Project at Yale Law School, [On-line], URL: http://www.yale.edu/lawweb/avalon/jevifram.htm.))

    Jefferson was hardly a theocrat.

    The problem we face today is no longer having a fixed moral standard. The late Christian apologist Francis A. Schaeffer had this to say about today’s fuzzy moral condition:

    If there is no absolute moral standard, then one cannot say in a final sense that anything is right or wrong. By absolute we mean that which always applies [to all people], that which provides a final and ultimate standard. There must be an absolute if there are to be real values. If there is no absolute beyond man’s ideas, then there is no final appeal to judge between individuals and groups whose moral judgments conflict. We are merely left with conflicting opinions. ((How Should We Then Live? (Old Tappan, NJ: Fleming H. Revell, 1976), 145. []

  2. John Warwick Montgomery, The Law Above the Law (Minneapolis, MN: Dimension Books/Bethany Fellowship, 1975), 24–25. []
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