The Declaration of Independence is often considered our nation’s initial founding document. It set us on this path of searching to perfect and protect both liberty and equality as core values in harmonious equipoise. The Declaration begins by proclaiming that “all men are created equal.” Yet, a country that accepted slavery and denied women’s basic rights certainly did not honor its commitment to equality at the outset. The Declaration further proclaims that men’s Creator endowed them with certain “unalienable Rights,” including life, liberty, and the pursuit of happiness. Since then, religious liberty has come to be termed by some Americans as the “First Freedom.” Yet, in the beginning, states were permitted to favor some religions over others. And since then, generations of religious minorities have had to protest that religious freedom is not true freedom if only protected for those with political power.
The process of perfecting the relationship between religious liberty and equality is ongoing. As one example, when the U.S. Supreme Court in 1986 rejected a challenge to Georgia’s criminal law against same-sex intimate relationships, the Bowers v. Hardwick majority approved the state’s enforcement of a majoritarian moral condemnation of gay people and deemed Michael Hardwick’s liberty claim “at best, facetious.” Chief Justice Warren E. Burger was more explicit in concurrence: “Condemnation of those practices is firmly rooted in Judeo-Christian moral and ethical standards.”
Seventeen years later, writing for the Court’s Lawrence v. Texas majority and overruling Bowers, Justice Anthony Kennedy embraced the core of the constitutional value: “At the heart of liberty is the right to define one’s own concept of existence, of meaning, of the universe, and of the mystery of human life. Beliefs about these matters could not define the attributes of personhood were they formed under compulsion of the State.”
The articles in this issue have revealed considerable agreement about the importance of defining one’s own personhood—whether in terms of religious or LGBTQ identity, or both, or neither—and of not improperly limiting others’ ability to do so. Authors have agreed that, in general, commercial establishments and religious institutions may be subject to some different rules and expectations. Religious institutions should have some freedoms and accommodations consistent with their missions but not unrestricted license to impose their beliefs on others. Our common public life should be open to all on equal terms, without bias or exclusion based on religion or LGBTQ status. As we anticipate the Supreme Court’s decisions in pending and future cases addressing these areas of law and life, let us continue together on this path toward a “more perfect union.”