All along, there has been another model that Greene calls “rights of reconciliation.” In the United States, two Supreme Court justices named John Marshall Harlan advocated it, one after the Civil War and the other, his grandson, a century later. Although it never gained a foothold here, it would eventually conquer European and global law under the label of “proportionality”. According to this model, the judge faced with a legal claim has to assess how important it is in relation to the state interest that allegedly threatens him. No or almost no rights should be absolute, as Glendon has already ventured. While Glendon thought vaguely about the need to restore the missing dimensions of community and responsibility, Greene points out that decision-makers must have a fact-based method of reconciling individual or minority law asserted with government or majority interest. Sometimes the first has to overcome the second, but not necessarily and only after it has been carefully defined. Even with rights that many Americans consider absolute – such as property and language – judges already participate in such “mediation” that weighs the interests of individuals and minorities against the collective and the majority.
This approach would provide a way through some of the more controversial cases the Supreme Court has seen in recent years. Greene cites Masterpiece Cakeshop versus Colorado Civil Rights Commission (2017) as an example, in which a baker invoked the Constitution’s First Amendment protection on religious freedom to stop baking a wedding cake for a same-sex couple. In this situation, his religious freedom came up against his state’s ban on discrimination against gay people. For Greene, the beginning of wisdom is realizing that there are conflicting rights, not figuring out which is the real one. And it’s important to see how tight an exemption was that Jack Phillips, the baker, wanted: not to discriminate against gay customers, but to refuse to bake for same-sex ceremonies for any customer, even if the couple’s immediate friends or relatives wanted to buy him. It wasn’t “existential,” but the courts escalated a culture war when they could have taken sides after paying more attention to each side.
For Greene, as it was for Glendon before him, Europe is the true paradise of legal thought. The predominant approach there is the compatibility of rights or “proportionality”. Like Glendon, Greene compares Roe’s divisive decision against Wade to grant women the absolute right to abortion in the first trimester (and no right to a fetus) to German case law, which led to less backlash and discord. For a good measure, Greene throws a comparison of Masterpiece Cakeshop with Lee v. Ashers Baking, a very similar UK case in which anti-discrimination law clashed with religious conscience but caused less fear and outrage. In the dispute in Northern Ireland, the UK Supreme Court found that this baker did not necessarily discriminate against gay people if he did not want to write messages on his cakes promoting the establishment of gay marriage.
Regarding both abortion and gay rights, Greene claims that Americans were led into civil war by believing that they could only have overloaded but petty rights. It could have been different, he says, and if the judges could move from choosing winners (and angry losers) to reconciling the parties, Americans could embrace more rights for more people. Here Greene goes beyond Glendon, who called for less rights and less legal thinking. Greene’s recipe applies to more numerous, but sometimes weaker, rights with strong courts to assert a greater number of claims – he cites the example of positive action (which the Supreme Court is likely close to being unconstitutional) and disability rights. Citizenship would become more meaningful even if the interpretation of rights in relation to their importance (and competing interests) ensured that they did not alienate and polarize majorities, but modestly and properly review them.
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