Undue Burdens

This week, Kentucky will defend state regulations designed to make it more difficult to open and operate abortion clinics. Known as "TRAP laws," these regulations target abortion providers with medically unnecessary hurdles to operation. Two Louisville abortion providers, Planned Parenthood and the private EMW Women's Surgical Center, are suing, arguing that the state is using unconstitutional regulations to either keep them out of business (PP) or shut them down (EMW).

The key regulation at issue in Kentucky is one that requires abortion clinics to acquire "written agreements" with a "licensed acute-care hospital" and a "local ambulance service" to care for clinic patients who may need emergency treatment beyond what the clinic itself can provide. The regulation does not specify what content is required in these written agreements, nor does it specify how close a hospital must be to the clinic for an agreement to be valid.

There are several problems with this regulation. First, hospitals and ambulance services are required by law to treat and transport emergency patients no matter where they come from. If a patient at the downtown Louisville location of EMW were to face a serious emergency, the clinic need only call 911 and a Louisville Metro EMS ambulance would arrive to take her to the nearest hospital, which is just a few blocks away. This would happen automatically, no "written agreements" necessary. So the written agreement regulation is medically unnecessary.

Second, if a hospital and ambulance service would be available anyway, what's the problem with getting a written agreement that confirms this? It should be simple, right? Well, Governor Matt Bevin has allegedly used his power to pressure Louisville hospitals not to enter into written agreements with abortion providers. For example, Planned Parenthood and the University of Louisville Hospital claim that that hospital rescinded a written agreement with the PP clinic after Bevin and his underlings directly threatened the hospital's various funding sources. PP then reached out to hospitals in southern Indiana (less than a mile away, just across the Ohio River) and in Lexington (50 minutes away) but the state has rejected those as too remote (even though the regulation specifies no geographical limits).

So PP is left without the paperwork necessary to get a license. And now EMW is trying to renew its license and is facing the same problems.

Regulations like these are specifically designed to interfere with a woman's right and access to abortion. Similar regs have been struck down by the U.S. Supreme Court because they create an "undue burden" on the autonomy of women without providing any legitimate medical benefit. Just last year, the Court struck down Texas regulations (and similar ones in other states) that required abortion providers to have hospital admitting privileges and required the clinics to be equipped as if they are "ambulatory surgical centers," even though they are not.

All of these schemes are part of a desperate flanking effort by conservative politicians to ban abortion without actually banning it, which they cannot do outright under current Supreme Court case law dating all the way back to 1974's Roe v. Wade decision.

Speaking of Roe, immediately after that decision, Kentucky passed new laws allowing and regulating abortion, but very begrudgingly. It set strict rules on who could perform abortions, where they could perform them, and what hoops women had to jump through to get them.

These laws are of varying coherence. One of the more head-scratching examples comes from KRS 311.710, the "Legislative Findings" section, first passed just after Roe. Subsection 1 reads:


How, exactly, the Commonwealth can ensure that an unborn child continues its "life after its abortion" is not explained in the law. Nor is it explained in Nebraska law, which passed a nearly identical statute around the same time. The Nebraska legislature uses stronger language to denounce abortion than Kentucky does, and it identifies Roe v. Wade by the date it was decided. Kentucky is more subtle, but does conclude the statute with a promise - if the Supreme Court changes its mind about this silly "woman's right to privacy" thing, you can bet the Commonwealth will ban abortion again.

It is the present intention of the General Assembly to protect the valid and compelling interests of the Commonwealth and its inhabitants without unduly burdening a woman's constitutional privacy rights as delineated by the courts. If, however, the United States Constitution is amended or relevant judicial decisions are reversed or modified, the declared policy of this Commonwealth to recognize and to protect the lives of all human beings regardless of their degree of biological development shall be fully restored.

So far that hasn't happened (if not without trying), and, presuming that the federal courts maintain their current position on TRAP schemes, Kentucky's attempted end run around Roe and its progeny via unnecessary and burdensome regulations will soon be eliminated, frustrating once again the "declared policy" of the Commonwealth.

Obergefell Grows Equal Protection Teeth on its Second Birthday

In Obergefell v. Hodges, Justice Anthony Kennedy focused primarily upon marriage as a "fundamental right" protected by the Due Process Clause of the Fourteenth Amendment. As such, the states were required to come up with a strong argument why they could deny it to anyone, let alone gay couples. They couldn't, at least not in the eyes of five of the justices, and the gay marriage bans were struck down.

Justice Kennedy didn't totally limit his reasoning to the due process question of rights, however. He did specifically reference the doctrine of equal protection - also required by the Fourteenth Amendment - and said that it and due process are tied together, based on similar principles of liberty and freedom and both protective of dignity and autonomy.

But many observers have criticized Obergefell for focusing too heavily on fundamental rights and not enough on equal protection. 

That's where Arkansas comes in. There, as in most states that I'm aware of, it is customary for the male spouse of a mother to appear on her child's birth certificate. It happens automatically, regardless of whether the husband is really the biological father of the child. There is no distinction for cases of adultery or artificial insemination. If you're a husband and your wife has a child, your name goes on the birth certificate. End of story.

But that wasn't the case for same-sex spouses in Arkansas. If a woman gives birth there and is married to a woman, her spouse's name didn't go on the birth certificate. Her spouse was not automatically considered the parent of the child - at least when it comes to documenting the birth.

Two couples challenged this rule. They won at the trial court level, but the Arkansas Supreme Court, considering the scope of Obergefell, found that the birth certificate rule "pass[es] constitutional muster" and upheld it.

Today, the U.S. Supreme Court summarily reversed that conclusion in Pavan v. Smith, an anonymous "per curiam" opinion. Why? Because Obergefell held that same-sex couples are entitled to "the constellation of benefits that the State has linked to marriage" on "the same terms and conditions" as different-sex couples. In other words, those couples are entitled to equal protection.

"Disparate treatment" is an equal protection term for discrimination. It doesn't get any clearer than that: Obergefell prohibits treating same-sex couples differently than different-sex couples when the state is doling out various "rights, benefits, and responsibilities" of marriage, including the presumption of parentage to the spouse of the birth mother. If husbands who are not biological fathers are entitled to be listed, then wives who are non-biological mothers must be listed. Simple enough.

But it apparently isn't that simple to Justices Gorsuch, Thomas, and Alito. Gorsuch, writing for them all, argued in dissent that summary reversals such as Pavan are only allowed when "the law is settled and stable...and the decision below is clearly in error," and this is not such a case.

Why? Well, first because there is no "constitutional problem with a biology based birth registration regime" standing alone (an overly simplistic conclusion based primarily on the sharply divided plurality decision of Michael H. v. Gerald D.). Second, the plaintiffs didn't directly challenge the artificial insemination provision of the law, just the general rule about "husbands" that excluded same-sex wives, so there was no reason for the Court to cite it as a reason for reversal. And third, the wife who is left off the birth certificate initially can simply adopt the child later and get added that way. 

Finally, Gorsuch says that Arkansas conceded before them that the artificial insemination rule, 9-10-201, would apply equally to same-sex spouses and thus there was not really a controversy for the court to resolve:

Thus, Gorsuch says, "it is not even clear what the Court expects to happen on remand that hasn't happened already." After all, Arkansas was going to list the mothers on the birth certificates anyway. This is much ado about nothing, or at least much ado about the wrong statute.*

But to me, the majority's view is more compelling. The rule that the plaintiffs challenged - the general requirement that a male spouse's name should appear on the birth certificate regardless of actual paternity, but not a female spouse's name, is discriminatory on its face. It treats same-sex and different-sex married couples differently. Under Obergefell, that's not allowed.

I am glad that six members of the Court took the opportunity to give Obergefell some equal protection teeth, especially as states and cities continue to try creative (and hateful) end runs around it. For example, the Texas Supreme Court is still considering whether Houston can deny marital benefits to municipal employees based on the sex of their spouse. Hopefully they will seriously consider Pavan and rule consistently with it.

*Update: As Mark Stern at Slate documents, Justice Gorsuch's recitation of the facts in the case is totally incorrect. Arkansas never conceded that it would list the birth mother's female spouse on the birth certificates. And it made no sense for the plaintiffs to challenge the artificial insemination rule because they didn't want to overturn it, they referenced it in support of their argument that the rule they did challenge - the rule limiting the naming of spouses to "husband" - was pointlessly discriminatory in violation of Obergefell. All of this suggests Gorsuch's opinion is fraught with errors that should be corrected.

Primary Colors

I'll be teaching a class on constitutional rights at Bellarmine University this fall. While preparing, and as we all struggle to survive what seems like a never-ending primary election season, a line of Supreme Court cases dealing with primary election discrimination grabbed my attention.

In the 1920s, Texas passed a law explicitly prohibiting African Americans from participating in Democratic party primary elections:

[I]n no event shall a negro be eligible to participate in a Democratic primary election held in the State of Texas.

At the time, the Democrats totally dominated Texas politics and the primaries were often more important than the general elections because Republicans (still then the "party of Lincoln") had no chance. The Ku Klux Klan had also grown very powerful in the state, so much so that an avowed knight of the order, Earl Mayfield, won the Democratic primary for U.S. senate in 1922 (and then defeated another Democrat who switched parties for the general election).

Excluding black voters from the Democratic primaries essentially negated their right to vote in any meaningful way, and even though they were still able to vote in the general election, the Texas law was a blatant violation of the Fifteenth Amendment (which explicitly prohibits racial discrimination in voting). Not only that, but it also violated the Fourteenth Amendment, which requires equal protection under the law.

In a case called Nixon v. Herndon, Justice Oliver Wendell Holmes, writing for a unanimous Supreme Court in 1927, said of the Texas law:

We find it unnecessary to consider the Fifteenth Amendment, because it seems to us hard to imagine a more direct and obvious infringement of the Fourteenth… The statute of Texas…assumes to forbid negroes to take part in a primary election…, discriminating against them by the distinction of color alone. States may do a good deal of classifying that it is difficult to believe rational, but there are limits, and it is too clear for extended argument that color cannot be made the basis of a statutory classification affecting the right set up in this case.

The Supreme Court ruled clearly: an explicit legislative exclusion of African Americans from the primary process was unconstitutional. So Texas, still dominated by racist Democrats and the Klan, tried again. A new law was passed the same year as the Herndon decision stating that "every political party...shall have the power to prescribe the qualifications of its own members and shall in its own way determine who shall be qualified to vote..." (Article 3110, Revised Civil Statutes of Texas).

With this legislative hall pass in hand, the Democratic Party of Texas updated their membership rules in 1928:

Be it resolved that all white democrats who are qualified under the Constitution and laws of Texas and who subscribe to the statutory pledge provided in Article 3110, Revised Civil Statutes of Texas, and none other, be allowed to participate in the primary elections.

The new rule excluded blacks from being members of the Democratic party, and thus excluded them from participating in the Democratic primaries (which were closed to non-members), and thus excluded them from effectively participating in the electoral politics of their state.

Another lawsuit followed, and once again, it reached the Supreme Court, this time as Nixon v. Condon in 1932. In a 5-4 majority opinion, Justice Benjamin Cardozo (joined by Hughes, Brandeis, Stone, and Roberts) rejected this new discrimination-through-proxy scheme and struck it down:

The test is not whether the members of the [Democratic Party] Executive Committee are the representatives of the State in the strict sense…. The test is whether they are to be classified as representatives of the State to such an extent and in such a sense that the great restraints of the Constitution set limits to their action. [This] case is seen to be ruled by Nixon v. Herndon. Delegates of the State's power have discharged their official functions in such a way as to discriminate invidiously between white citizens and black. The Fourteenth Amendment, adopted as it was with special solicitude for the equal protection of members of the Negro race, lays a duty upon the court to level by its judgment these barriers of color.

As "delegates of the State's power," the Democratic Party's actions brought it within the prohibitions of the constitution. Such delegation was not particularly hidden, either, because the nefarious party resolution actually cited the enabling Texas statute.

Undeterred by two straight losses, the Texas Democrats took a different, more clever tack. At the party convention of 1932, they issued a new resolution which omitted any language specifically excluding blacks from the party and any reference to Texas state law:

Be it resolved that all white citizens of Texas who are qualified to vote under the Constitution and laws of the state shall be eligible to membership in the Democratic party and as such entitled to participate in its deliberations.

Despite the change in language, the effect was the same. Black voters couldn't be Democrats or vote in the Democratic primary, which was still the only meaningful electoral contest in Texas.

A third lawsuit against this "white primary" rule reached the Supreme Court as Grovey v. Townsend. But though the composition of the Court was identical to that which decided Condon, the challengers fared far worse. This time a unanimous Court ruled against black voters and in favor of the Texas Democrats.

Why? Because now the Court found no state action involved, either direct or through delegation of power. Political parties are private entities. As private entities, they can make their own rules. According to Justice Owen Roberts, writing for the Court:

The legislative assembly of the state…has never attempted to prescribe or to limit the membership of a political party, and it is now settled that it has no power so to do… We are not prepared to hold that, in Texas, the state convention of a party has become a mere instrumentality or agency for expressing the voice or will of the state… The argument is that, as a negro may not be denied a ballot at a general election on account of his race or color, if exclusion from the primary renders his vote at the general election insignificant and useless, the result is to deny him the suffrage altogether. So to say is to confuse the privilege of membership in a party with the right to vote for one who is to hold a public office. With the former, the state need have no concern…

The Democratic Party was allowed to make its own rules and as long as Texas wasn't compelling them or enabling them to discriminate, the Court viewed itself as powerless to intervene.

African Americans could now effectively be excluded from the political process in Texas despite the Fifteenth Amendment.

But years later, in a case arising in a different state with a very different set of facts, the constitutional climate changed. In 1940, Louisiana election officials were charged with a federal crime for altering and miscounting ballots in a Democratic primary election. The indictments could only be upheld if the primary election was considered to implicate a right "secured by the Constitution."

Louisiana was much like Texas in that the Democratic party was so dominant that the only meaningful elections were Democratic primaries. As such, an official's interference with that process interfered with voters' constitutional right to vote. Writing for the Court in United States v. Classic, Justice Harlan Stone explained:

Unless the constitutional protection of the integrity of ‘elections’ extends to primary elections, Congress is left powerless to effect the constitutional purpose, and the popular choice of representatives is stripped of its constitutional protection…
[A] primary election which involves a necessary step in the choice of candidates for election…, and which…controls that choice, is an election within the meaning of the constitutional provision...

And thus the landscape had shifted, and a new challenge to the Texas party rule was possible. Like in Louisiana, the Democrats controlled Texas so totally that their primary elections were de facto general elections. Though United States v. Classic involved no racial discrimination, the case became a weapon against the exclusion of black voters.

A fourth challenge to the Democrats' scheme was launched and reached the Supreme Court as Smith v. Allwright in 1944. The 1932 party resolution attacked in Grovey was still in effect, but this time it did not survive.

Justice Stanley Reed delivered the near-unanimous opinion of the Court:

This grant to the people of the opportunity for choice is not to be nullified by a state through casting its electoral process in a form which permits a private organization to practice racial discrimination in the election. Constitutional rights would be of little value if they could be thus indirectly denied. The privilege of membership in a party may be, as this Court said in Grovey v. Townsend, no concern of a state. But when, as here, that privilege is also the essential qualification for voting in a primary to select nominees for a general election, the state makes the action of the party the action of the state.

States are prohibited by the Fourteenth and Fifteenth Amendments from discriminating by race, so, as a state action, the racist Democratic Party resolution was unconstitutional.

Finally, after more than twenty years, the Texas "white primary," and all explicitly racial primary election exclusions like it, was struck down. Of course, other, more oblique schemes (like the literacy test) would survive until the Voting Rights Act was passed in 1965, but a significant hurdle to full electoral participation by African Americans had finally fallen.

We Meant Well

Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof; or abridging the freedom of speech, or of the press; or the right of the people peaceably to assemble, and to petition the Government for a redress of grievances.

First Amendment to the U.S. Constitution (emphasis added)

"We Meant Well" is not just the title of Peter Van Buren's excellent book about the futile and wasteful attempt of the U.S. to rebuild Iraq after invading it. It's also the universal plea of all those who, despite good intentions, really made a mess of things somehow.

This week, Pew Research released the results of a poll about freedom of speech. For the first time ever, they asked whether respondents believed government should be able to prevent people from saying things offensive to minority groups. Two-thirds said no. Twenty-eight percent said yes.

If you're a proponent of free speech, or, rather, opposed to the government criminalizing speech, the results should be reassuring to you. It seems there is little support for a crackdown by police and other state actors on offensive utterances. America isn't England, after all. We have a tradition of allowing people, by right, to say pretty much anything they want to say no matter how borish or offensive it might be, with few exceptions.

But digging deeper into the poll results reveals something peculiar. "Millennials," those wily scamps aged 18-34, support so-called "hate speech" laws more than anyone else. Forty percent are OK with government restrictions on speech offensive to minority groups. Nobody else comes close. Both Gen X (my generation) and Boomers (my parents) manage less than thirty percent support for such a proposition. It may or may not shock you that the "Silent Generation" (my grandparents) aren't keen on laws against racist commentary at all - eighty percent say no.

The racial breakdown is also not especially surprising. Non-whites support anti-racist speech laws at a rate fifteen points higher than whites. So the two biggest contingents of support come from young people and people of color.

If you run in academic circles or pay attention to the various anti-racist protest movements around the country, you might be inclined to believe that the vast army of non-white PC fascists on college campuses is the force behind this sentiment. But the poll shows that support for hate speech laws declines as college education increases. Granted, there are a LOT more college graduates both older and whiter than the current crop of college protesters fighting for "safe spaces" and racial justice across America's quadrangles, but it still suggests that most support comes from those who haven't graduated high school - though the rank of high school graduates now includes more Millennials than it excludes due to age alone.

No matter which demographic breakdown seems more illuminating, it is important to point out the problems with the underlying premise of outlawing "statements that are offensive to minority groups." How does one determine what is "offensive?" I'm not trying to be obtuse here. There are certain racist things that pretty much everybody can understand to be offensive by their very nature. But if we're going to criminalize certain speech (or, as the poll describes it, let the government "prevent" it), we'll need to define it some way. Who gets to define it?

The answer, of course, is legislators. Leaving aside for a moment the fact that most legislators at all levels across our country are white men, we couldn't outlaw offensive speech unless we had a law defining what counts as offensive. Do we let the police arrest only those who use the "N-word?" Or do we let them arrest someone for saying anything up to and including vaguely troublesome dog whistles like "you people?" Where is the line drawn?

Let's create a hypothetical rule to answer that question. Let's outlaw any explicitly racist slur. The "N-word," of course, but also "Chink," "Wetback," "Negro," and the like. If you use one of those words, in any context, the police can arrest you and you can be charged with a misdemeanor. Also, we'll outlaw any terms or statements that are critical of an entire race as a whole. Anyone who says "black people are animals," or "Hispanics are lazy criminals" or anything broadly nasty such as that can also be arrested and charged. 

This rule is passed by a legislature of some sort. Let's call them Congress a decade from now. We've had a couple of elections and we'll presume that a Democratic wave has recaptured both houses. In an effort to appease the liberal base and move the country closer to racial justice, Congress passes the Hate Speech Act that outlaws racist slurs like what we've identified above.

Things go smoothly for a few years. Racist jerks are being arrested and charged and the incidents of public hate speech are on the decline. The law is an effective deterrent for nasty racist commentary. But something else is still happening. Black men are still being killed by police officers at a disproportionate rate. Protesters and angry commentators are still saying and posting things very critical to police forces all over the country.

Then Congress shifts back to the GOP. And, seizing the power of the Hate Speech Act, they amend it to include anything critical of police officers. They call it the Blue Lives Matter Act. Soon, protesters opposed to police brutality get arrested and charged for hate speech by the dozens, and are easily convicted. The law, after all, paints with a wide brush because hate speech can come in varying forms. And why should only racial minorities be protected? Why not police officers, our heroes and protectors?

Such is the danger of criminalizing speech. There is no doubt that racist rhetoric is poisonous to our civil discourse and traumatic to those who are targets of it. Freedom of speech or not, good citizens should not be lobbing hateful comments at each other. Racist slurs and insults reinforce societal inequalities that must be combated and torn down somehow.

But we must resist the urge to "do something" about it if doing something restricts the freedom of expression we enjoy as a right under our Constitution. Not because hateful rhetoric is OK or racists should not be scorned or shunned, but because criminalization of anything increases the power of the police state and gives more power to those who would abuse it. The vague notion that something is "offensive" to someone can be manipulated to benefit the privileged against the oppressed, even if the initial intent was noble.

In 1798, in the wake of the French Revolution, President John Adams signed into law the Sedition Act, making it a crime to criticize the national government. Many people (mostly members of Thomas Jefferson's Democratic-Republican Party) were fined and arrested and imprisoned under the law. Though obviously unconstitutional (the First Amendment expressly prohibits Congress from abridging the freedoms of speech and the press), the Supreme Court of 1798 was not the same as it is now. There was no way to have such a law declared unconstitutional. Only after Jefferson became president and the Democratic-Republicans took office was the Sedition Act allowed to expire.

More than a century later, Congress amended the Espionage Act of 1917 to outlaw "disloyal, profane, scurrilous, or abusive language" aimed at the U.S. government during World War I. The amendment was known as the Sedition Act of 1918 and was not repealed until 1920, two years after the war ended. It was even upheld as constitutional in the case of Abrams v. United States, 250 U.S. 616 (1919). Violation of the law carried a jail sentence as long as twenty years. The most famous person convicted under the law was Eugene Debs, the socialist labor union organizer and critic of the U.S. government (he spoke out against conscription).

The Sedition Act and its later incarnation as an amendment to the Espionage Act, though draped in the nobility of national security and unity, were tools for those in power to consolidate their control and dominance. And that is the risk posed by any restriction on speech. The people in power need only tweak the definition of what speech is criminalized, then aim the coercive power of the police toward their preferred targets. Perhaps that's not scary if you're the one in power and not the current target of the restriction. But political power can be transitory in this country and your tight hold on government could vanish overnight.

Racist speech is reprehensible and indefensible. Yet criminalizing it would only expand the power of the privileged (who fill the seats of government) and the police (who physically assert their will). Pass a hate speech law against racism today, tomorrow it could easily prohibit the critical speech that fuels effective protest movements against government overreach and police abuse.

As the police batons come cracking down on the heads of outspoken troublemakers merely for uttering the wrong words and they find themselves convicted under laws they once supported, surely some will think to themselves, "but we meant well."

Can There Really Be a Conflict Between the First and Fourteenth Amendments?

In his dissent to Obergefell, Justice Clarence Thomas raised the specter of a conflict between First Amendment rights and the Supreme Court's concept of liberty under the Fourteenth Amendment.

Aside from undermining the political processes that protect our liberty, the majority’s decision threatens the religious liberty our Nation has long sought to protect...
Numerous amici—even some not supporting the States—have cautioned the Court that its decision here will “have unavoidable and wide-ranging implications for religious liberty.” Brief for General Conference of Seventh-Day Adventists et al. as Amici Curiae 5. In our society, marriage is not simply a governmental institution; it is a religious institution as well. Id., at 7. Today’s decision might change the former, but it cannot change the latter. It appears all but inevitable that the two will come into conflict, particularly as individuals and churches are confronted with demands to participate in and endorse civil marriages between same-sex couples.

Justice Thomas does not specify from where exactly these "demands to participate in and endorse civil marriages" will come, however. If those demands are purely social, from individuals and other religious groups, then they are of no concern to the Supreme Court. The First Amendment protects individual free exercise from government action, not from public criticism or social pressure. Unless the government starts demanding that churches perform certain kinds of weddings (it doesn't currently, has never in the past, and won't in the future), no First Amendment infringement seems possible.

But still, this weak argument aside, could the Supreme Court have created the possibility of a conflict between the First and Fourteenth Amendments? In previous writing I have assumed that such a conflict might be possible (but nevertheless the Fourteenth should triumph over the First). But I have thought more about it and now I'm not so sure a conflict is really possible.

Both the First and Fourteenth Amendments constrain government action. The First Amendment says the government can't infringe our rights to speech, petition, assembly, and religion. And not only is our religious free exercise protected, but we are also protected from any formal establishment of a state religion which might exclude non-believers. The Fourteenth Amendment, for its part, requires that the government provide due process before any deprivation of life, liberty, or property, and that it provide equal protection under the law.

So how, exactly, can these two amendments conflict? The right of someone else to get a state license for their marriage doesn't interfere at all with anyone's personal beliefs. It doesn't compel an individual, private citizen to act in any sort of way, either. Churches can still turn gay couples away. Ministers can refuse to solemnize certain marriages they don't condone. Parishioners can shun whoever they find distasteful. Obergefell changed none of that.

Opponents of Obergefell conceive of only two possible scenarios where a conflict between the First and the Fourteenth Amendment can arise.

The first is the possibility that discriminatory religious organizations might lose tax exempt status. In the case of Bob Jones University v. United States, 461 U.S. 574 (1983), a religious school lost tax exempt status because it prohibited interracial dating among students. This was such a flagrant violation of the legitimate government policy of integration and anti-discrimination that the IRS revoked the school's tax privileges. There's an important distinction here: tax exempt status is not a religious right. It is a privilege extended by the government consistent with larger public policies. Whether a religious organization is tax exempt or not has no effect on the individual religious beliefs of its members or its administration. They are free, as individuals, to oppose interracial (or same-sex) marriages in their individual lives, but they can't discriminate in public and expect to receive public benefits for it.

The other situation is the now-familiar case of county clerks in Kentucky. They are denying marriage licenses either to all couples or just to same-sex couples in protest of Obergefell. The clerks argue that their First Amendment religious rights are infringed by having to issue licenses to couples they dislike. But courts have never recognized a right of public officials to exercise their religious beliefs when acting in their official, public capacity. Clerks can certainly believe whatever they want, and in their private lives away from work they can shun anyone they believe is sinful. But when they're at work as county clerks, they are the government. If there is any constitutional conflict at play, it's perhaps an internal conflict within the First Amendment between the Establishment Clause and the Free Exercise Clause. The Establishment Clause prevents the imposition of religious whim by government officials in order to preserve equality for all. In that way, the First Amendment and the Fourteenth Amendment work in conjunction. They don't conflict.

The Supreme Court has previously explained how the First Amendment and Fourteenth Amendment actually work together to preserve individual liberty from government oppression. In West Virginia State Board of Education v. Barnette, the Court struck down mandatory recitations of the Pledge of Allegiance in public schools. The Barnettes, a family of Jehovah's Witnesses, argued that their personal beliefs relegated the authority of the state below the authority of god. Therefore they could not swear an oath or allegiance to the national flag, as mandated by the public school system. They argued that under both the First Amendment and the Fourteenth Amendment, the government could not single out their children for punishment when they refused to say the Pledge due to their religious convictions.

The Supreme Court agreed with the Barnettes. In doing so, the Justices noted that the First Amendment and the Fourteenth Amendment actually work together, protecting the liberties of individuals from government intrusion and compulsion. The Fourteenth Amendment, rather than an enemy of religious exercise and free speech rights, is a tool for their protection:

In weighing arguments of the parties it is important to distinguish between the due process clause of the Fourteenth Amendment as an instrument for transmitting the principles of the First Amendment and those cases in which it is applied for its own sake. The test of legislation which collides with the Fourteenth Amendment, because it also collides with the principles of the First, is much more definite than the test when only the Fourteenth is involved. Much of the vagueness of the due process clause disappears when the specific prohibitions of the First become its standard. The right of a State to regulate, for example, a public utility may well include, so far as the due process test is concerned, power to impose all of the restrictions which a legislature may have a "rational basis" for adopting. But freedoms of speech and of press, of assembly, and of worship may not be infringed on such slender grounds. They are susceptible of restriction only to prevent grave and immediate danger to interests which the State may lawfully protect. It is important to note that while it is the Fourteenth Amendment which bears directly upon the State it is the more specific limiting principles of the First Amendment that finally govern this case.

319 U.S. 624, 639 (1943).

In the two situations above, where modern proponents of theocracy foresee a conflict between the First and Fourteenth Amendments, there is no government action infringing on free exercise. The revocation of tax exempt status does not compel a change in religious beliefs. It may incentivize religious schools to stop discriminating, but it does not force them to do so. They can continue to discriminate, but they will have to pay taxes in the meantime, just like religious individuals who are also free to discriminate but don't get a tax break for doing so.

And the provision of marriage licenses to same-sex couples doesn't stop religious individuals or organizations from hating and shunning gay people or politically opposing such unions. But county clerks do not act as individuals. They are the government, and as such, they cannot use religious free exercise as an excuse to treat some citizens differently and deny government services to them. When they do so, they create a conflict not between the Free Exercise Clause and the Fourteenth Amendment, but between the government and the Establishment Clause.