With the resignation of Justice Kennedy, a momentous task has befallen you. How you proceed with selecting the next Supreme Court justice will have an immeasurable impact on the country and your fellow citizens for decades.
Justice Kennedy was a conservative justice of the old school. He believed in limiting the intrusion of the government/courts whether it be in business matters or the lives of individual citizens. Thus while he just voted in favor of American Express and in support of your travel ban, he was the lead justice in the decisions that decriminalized homosexuality and that recognized the equal right of gays and lesbians to marry.
The other four conservative justices are instead conservative politically, not judicially. Meaning, while they are against government/court intrusion into business and the executive branch, they favor government/court intrusion to enforce their version of morality on individuals, especially on matters relating to the LGBT community and the right of a woman to choose.
You have two choices. You can either please your socially conservative base and appoint a justice that is not true to Justice Kennedy’s legacy. Or you can appoint a justice that is a conservative in the mold of Justice Kennedy.
What is at issue here is a basic principle of our Constitution and democracy. In life, competing rights often run up against each other. When the exercise of one’s rights either harms another or impinges on their rights, then that is not allowed. That’s the basis for our criminal law and all government regulation.
In the case of LGBT matters, you have on the one hand people who have very strong religious convictions that homosexuality is immoral and a sin. On the other hand you have gays and lesbians who are just trying to live their lives like everyone else … working, marrying, having children. As Shakespeare put it, “If you prick us, do we not bleed?” They are engaged in what the Declaration of Independence terms, “life, liberty, and the pursuit of happiness.”
No private person should ever be forced to do something that violates their religious conviction. However, when a private person provides a service to the general public, whether it be as a doctor, a pharmacist, an employer, or a baker, they are no longer acting as a private person. They are providing public services that must be provided to all citizens equally, without discrimination or bias.
This in no way prevents them from holding their beliefs, but if they step out of the private zone and into providing a public service they cannot act towards others based on that conviction. That would impinge on the others’ right to receive services free of discrimination.
Let me illustrate this point with an extreme example. If it were someone’s religious conviction that Jews were Christ-killers and thus hated Jews, or if someone’s religious conviction was that Blacks were inferior people, not made in God’s image, and so could be oppressed, would the Court ever say that someone’s religious conviction overrode a Jewish person’s or a Black’s right to be free of discrimination? Of course not. And it’s not just because the law now specifically provides those rights. It’s because those rights are inherent in our Constitution, the Declaration of Independence, our democracy.
In the case of a woman’s right to choose, there are likewise those who have strong religious convictions regarding ending the life of a fetus and even against contraception. On the other side, you have women who for a variety of reasons, personal or medical, either do not want to become pregnant or have a fetus mature into a child and be born in detriment to their own health and wellbeing.
Here again, you have the distinction between the private person and one who provides a service to the public. A pharmacist, an employer, a clinic cannot deny women access to the products or information they need to make a decision and implement it.
But this argument also has its limits. To clarify the point about competing rights, here is an extreme example: you could not force a doctor to perform an abortion because in that case you would be forcing him to actually do something that violates his principles, as opposed to providing information regarding something or a product that is against his principles.
Your role as President is to be President of all the people, to protect all the people, to insure that all people are treated fairly and equally. There is no question that there are some people and organizations that are down-right anti-religious. But that is their free speech right, except in the provision of a public service. And that is no excuse for depriving the Supreme Court of the political neutrality that is essential in its role of interpreting our laws and enforcing the Constitution. The health of our democracy and the wellbeing of our citizens depends on it.
