America’s growing divide over constitutional interpretation

A majority of Americans say courts should interpret the U.S. Constitution according to what it “means in current times” not as “originally written,” according a new Pew Research Center survey. This year’s survey results mark the first time a majority of respondents (55 percent) advocate that position and reveal a deep, and growing, generational and political divide over the idea of timeless truth.

“Democracy is working well in America” but not “very well,” according to survey participants. The survey asked Americans about the Constitution, elections, congressional representation, and democratic debate. It revealed respondents’ growing dissatisfaction with the government’s “design and structure.” They called for “significant changes” but demonstrated little consensus on how to achieve that.

But at least one constitutional expert believes the survey respondents’ position on constitutional interpretation indicates a problem with the wording of the survey, not the Constitution.

“Most people think the Constitution should be interpreted to mean what it has always meant,” said Stanford Law School professor Michael McConnell, who served seven years as a judge on the 10th U.S. Circuit Court of Appeals. “That’s the commonsensical way we read every text.”

In 2005, Pew began asking Americans if the Constitution should be interpreted according to its original meaning or its current meaning. Respondents remained closely divided until 2016, when the originalists began to decline. A 9 percent spike this year among those advocating a “current times” interpretation put them in the majority for the first time.

The poll, taken in January, February, and March, also reveals the widening gap between Republicans and Democrats and millennials and older members of both parties. Democrats who say the Constitution should be interpreted according to “current times” have steadily increased since 2010, from 66 to 78 percent. And while the number of Republicans who agree with the “current times” interpretation shot up 11 percent since 2016, from 19 to 30 percent, they still come in under the 2005 high of 43 percent for GOP-affiliated respondents.

Some judges already use “current times” as a lens for interpreting law and the Constitution. For example, the 7th Circuit last year ruled to expand the meaning of the word “sex” to include “sexual orientation.” But McConnell argues that in too many rulings judges do not apply “current meaning” but “wishful thinking,” offering an interpretation with no connection to the law or the Constitution’s text.

The prevalence of the term “hate speech,” offers a good example. Although the term has no legal definition, hate speech regulations are popular on college campuses, reinforcing the idea that current mantras carry the force of law.

Most significantly, the survey reveals the need for civic education and a critical look at concepts like “hate speech,” McConnell said.

“I’m not even talking about conservative civic education,” he added. “Teach them from the writings of the great progressive jurists. The progressive jurists don’t say silly things like this. The progressive jurists understand that we have a fixed Constitution with enduring principles.”

For now, the federal judiciary remains the most balanced institution in government, McConnell said. But if young people continue to push for unconstitutional concepts like censoring offensive speech, that idea eventually will creep into the courts.

“There is no principle of First Amendment law that is as unshakeable as that speech can’t be censored because it’s found to be offensive,” McConnell said. “This comes from the left and the right. This is not something upon which progressives and conservatives disagree. But that point of agreement is being rejected by a lot of young people.”

Christian foster agency sues city for discrimination

Catholic Social Services of Philadelphia sued the city in federal court last week for religious discrimination over the city’s decision to stop referring foster children for placement with the agency.

Philadelphia issued a call in March for 300 new foster families to help care for the 6,000 youth in the city’s custody. But just one week later, the city unexpectedly decided to stop using Catholic Social Services and Bethany Christian Services to help find families for foster children because those two agencies both believe in the Biblical definition of marriage as between one man and one woman and only place children in families with heterosexual parents. The city announced the decision just days after a Philadelphia Inquirer article reported that Bethany Christian Services turned away a same-sex couple who wanted to become foster parents and referred them to other agencies.

“We cannot use taxpayer dollars to fund organizations that discriminate against people because of their sexual orientation or because of their same-sex marriage status,” Mayor Jim Kenney told WHYY-TV.

Philadelphia officials say Catholic Social Services, which has never had a complaint from a same-sex couple, and Bethany are violating the city’s nondiscrimination policy. But the lawsuit claims Philadelphia is violating the agencies’ First Amendment freedom of religion to the detriment of children. The agency serves about 120 children in foster care on an ongoing basis. If the city terminates the agency’s contract, all of those children will have to relocate to new homes. As the city continues to struggle with a lack of foster families, the loving homes of foster parents licensed by the two faith-based agencies sit empty. —Lynde Langdon

Christian counselor fired over her faith

A licensed clinical social worker who lost her job because she didn’t want to provide marriage counseling to a same-sex couple has filed suit against the Michigan hospital that fired her. Kathleen Lorentzen, who is Catholic, insists she lost the job she’d held for more than 20 years because she asked for a religious exemption.

Lorentzen, represented by lawyers from the Thomas More Law Center, sued HealthSource Saginaw for violating her civil rights under Title VII of the Civil Rights Act of 1964 and Michigan state law. Her case is one of many in which healthcare workers feel pressured to choose their profession or their faith. Similar complaints prompted the Trump administration to create a new office within the Department of Health and Human Services tasked with addressing religious liberty challenges.

Congress has passed three statutes establishing conscience rights for healthcare workers, but they are not widely enforced.

“This case shows that people of faith are under assault in the workplace,” said Tyler Brooks, a Thomas More lawyer. “The fact is, however, that Christians need not choose between their faith and their jobs. Despite what many would have us believe, discrimination against Christians is a civil rights violation that will subject employers to legal liability.”

Lorentzen has worked with homosexual clients in the past but didn’t think she could effectively counsel the couple on marriage issues because she believes true marriage can only exist between one man and one woman. She asked her supervisor to refer them to another therapist, a request that prompted an interrogation about her faith and her long career with HealthSource. The hospital sent her a termination notice not long after. —Leigh Jones

New Jersey town sued over public prayer ban

A Native American tribe has accused a New Jersey town of religious discrimination in a land use fight that has generated $500,000 in fines. The Ramapough Lenape Nation claims Mahwah officials are trying to force it off land it uses for religious ceremonies and other tribal activities. Local officials say praying on the land violates the town’s laws, a claim the tribe’s spokesman compared to Jim Crow laws mandating segregation in the South. Mahwah has a history of clashing with groups over visible religious practices: Earlier this year the town settled a discrimination suit brought by members of an Orthodox Jewish community over a structure used to help with tasks they couldn’t otherwise perform on the Sabbath. —L.J.