In a recent article, Steve Timko referred to views vigorously defended by Richard Ziser, of Nevada Concerned Citizens, stating a strong commitment to the Nevada proposition that amended the state’s constitution to define marriage as being between a man and woman. According to Timko, Ziser went further than just defending the Nevada provision, however, and argued that ultimately there is “a battle between homosexual rights and religious liberties.” As an example, Ziser observed that “in one U.S. incident, a high school student was suspended simply for saying in a German class he did not believe homosexuality was right.” For Ziser, the question thus raised is clearly answered by the Constitution: “It seems to me that it’s religious liberties that are in the Constitution, not homosexual rights.” At the risk of sounding like a mere quibbler, it seems that his actual example, if it happened at all, presents a battle between free speech—not “religious liberties”—and a presumed state interest in deterring speech that offers the opinion that homosexual behavior is morally wrong (hence: “he did not believe homosexuality was right”). But surely one would have great difficulty finding any law-trained person who would defend the idea that the state can appropriately punish a high school student for stating his opposition to the morality of homosexual behavior.
Beyond the quibble just set forth, it appears that Ziser thinks it manifest that “religious liberties” are “in the Constitution,” while “homosexual rights” are not. But if text and history were our guides, neither assertion may be true. If our “high school student” asserting the immorality of homosexual behavior in his German class contended that the school could not “suspend” him because of his “religious liberties,” it is quite unclear that the First Amendment religion clauses were intended to offer him any protection at all. As originally drafted, the First Amendment quite clearly did not limit the power of state governments or local school officials. The entire Bill of Rights limited the powers of the national government and had no application to state or local government officials. If the religion clauses limited the school’s power to suspend our hypothetical student, it would be because the First Amendment’s protection of religious liberty limits the exercise of state power by virtue of Section 1 of the Fourteenth Amendment. But if we conceived ourselves only as bound by text and history—by the originally intended meaning of textual provisions of the Constitution—the best scholarship concludes that there is little reason to think the nation ever reached a consensus about limiting state power by the demands of religious freedom. See Steven D. Smith, Foreordained Failure: The Quest for a Constitutional Principle of Religious Freedom (1995). So the case for relying on “religious liberties” because it is “in the Constitution” is practically indefensible.
But it may be that the other half of our textual question is the one that Ziser may find the most perplexing. The central limit on the power of state and local governments, found in the Fourteenth Amendment, is the obligation it gives to states not to enact laws that “abridge” the “privileges or immunities of citizens of the United States.” This Fourteenth Amendment requirement that the states not enact laws that treat some as second-class citizens is the appropriate historical ground of the Supreme Court’s modern Equal Protection doctrine. It is thus no coincidence that Justice O’Connor, a relatively conservative Justice not given to a-historical flights of fancy, concurred in the Court’s decision in Lawrence v. Texas, invalidating the law criminalizing the act of sodomy by same-sex couples, relying on the Equal Protection Clause. Justice O’Connor reasoned that a state may not criminalize “homosexual sodomy,” even as it tolerates heterosexual sodomy, because simple “moral disapproval” of a group does not generate a legitimate governmental interest —especially where “the law serves more as a statement of dislike and disapproval against homosexuals than as a tool to stop criminal behavior.”
So the assertion that the Constitution itself secures “religious liberties,” but not “homosexual rights,” has it just about backwards. The Constitution’s provisions that limit the power of the states make it unconstitutional to enact laws that create “a classification of persons under-taken for its own sake,” as O’Connor stated in Lawrence. The requirement that states not pass laws simply to treat some unequally is a requirement that is undeniably “in the Constitution.” It is true, of course, that the Supreme Court has ruled in favor of applying the religion clauses of the First Amendment as limits on the states, but if our sole focus were on the question whether these rights are “in the Constitution,” we would have reasons to doubt that these provisions forbid a high school to fail to secure religious freedom.