Bud Kennedy

Equality or liberty? The debate was inevitable, A&M Law prof says

Professor Meg Penrose of the Texas A&M University School of Law calls the conflict of balancing religious liberty and equal protection in Indiana and Arkansas the “perfect constitutional storm.”
Professor Meg Penrose of the Texas A&M University School of Law calls the conflict of balancing religious liberty and equal protection in Indiana and Arkansas the “perfect constitutional storm.” Texas A&M School of Law

After Holy Week comes holy turmoil.

For the next two months, or until the Texas Legislature is safely out of Austin and unable to wreak further havoc, any day could turn Texas into the next Indiana or Arkansas.

Proposed constitutional amendments toughening Texas’ religious freedom law don’t blatantly reverse civil rights. (Indiana’s did.)

But anything can happen if a Texas proposal gets to the floor, where guns are exalted as God-given but LGBT Texans are shunned.

Turns out this kind of conflict over civil rights and religious freedom was going to happen anyway, and a prominent law professor says the Legislature is actually the best place.

“The week was kind of remarkable,” said Meg Penrose of the Texas A&M University School of Law, calling the conflict of balancing religious liberty and equal protection in Indiana and Arkansas the “perfect constitutional storm.”

“I’m thrilled to see it playing out in the legislative arena rather than in the courts,” she said Friday.

“I would like to think that we can decide what is best for our citizens. … If it goes to the Supreme Court, we risk a decision that has even deeper effects.”

The court will hear same-sex marriage cases April 28 and seems inclined to at least make states recognize legal marriages regardless of gender, if not perform them.

But allowing any couple to marry based on gender equality is not the same as granting LGBT civil rights.

“We really don’t know what to do,” Penrose said.

“Say you have the right to marry. But then another person says, ‘Yes, but I also have the right to live out my firmly held religious beliefs.’ I don’t know what the court will do.”

Much of the torqued-up rhetoric from both sides last week was obvious political hyperbole.

Nobody is ever required to bake a swastika cake “for the neo-Nazi convention” or any specific cake, as state Rep. Matt Krause, R-Fort Worth, claimed in defending his House Joint Resolution 125.

But when whirlwind social-media campaigns trigger violent threats or physical violence, that is not in the spirit of either civil rights or faith.

“I feel a great deal of empathy for people in small towns, for the florist or the baker who’s uncomfortable for religious reasons,” Penrose said.

The same Supreme Court set to rule on marriage for all also expanded religious freedom for all in its recent judgment for Hobby Lobby Stores.

“It’s a time of turmoil,” Penrose said.

“Sadly, there seems to be an equal lack of respect on both sides for the sincerity on both sides and the constitutional arguments of both.”

Last week was dizzying, with Indiana and Arkansas reconsidering laws that tilted the legal playing field to always favor religion.

In the 1960s, business leaders’ influence led some Southern cities to prize unity, stability and success ahead of racial discord.

Last week, they rose again to promote hospitality for all.

“When you have a company like Wal-Mart stepping up to protect its workers … kudos to Arkansas,” Penrose said.

“That’s a state with a very ugly civil-rights history, but with a governor [Asa Hutchinson] who doesn’t want his state embroiled in this history.”

We prize both equality and religious liberty as moral issues.

As for the Legislature, we can only pray.

         

Bud Kennedy’s column appears Sundays, Wednesdays and Fridays. 817-390-7538

Twitter: @BudKennedy

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