For centuries, religion has made the human condition not only more tolerable, but also more serene, comforted and spiritually uplifting. But, over those same centuries, some acting in the name of religion have caused war and strife and contributed to actual worsening of the human experience.
In America, religion has long been at the center of one culture war after another, from the Great Awakening to the Scopes “monkey trial,” from prayers in the public schools to the cross on the statehouse lawn, from a Supreme Court that once proclaimed this to be “a Christian nation” to a Congress inserting God into the Pledge of Allegiance.
It is as if Thomas Jefferson’s “wall of separation” between church and state had been vulnerable to crumbling since he put that phrase into a famous letter to the Danbury Baptists in 1801. Through the two-plus centuries since then, that “wall” has at times seemed sturdy, at times seemed shaky. Hardly any gesture of government, at any level, that seems either to promote or to inhibit religion tends to renew the combat, and the culture right over religion lately seems to have intensified.
The Supreme Court is no stranger to that strife, and remains at the center of it today. Let it act directly on an issue of religion, or let it act on an issue that is not religious as such but may still produce a religious backlash, and it will have stirred up another enduring controversy. It has done that again in the past nine days, issuing three historic decisions clearly demonstrating a deepening sympathy for legal claims based on faith. The rulings accelerated a trend that has been developing more intensity and growing speed in recent times.
One facet of two of the decisions was quite surprising: the Court’s five conservative Justices picked up the votes of two of the moderate-to-liberal Justices, Stephen G. Breyer and Elena Kagan to make hefty seven-member majorities. It appeared that those two may have done so strategically, to try to put themselves into position potentially to moderate the conservative bloc as time goes on.
Here, in summary, is what the Court has just done about religion, definitely reflecting conservative judicial preferences:
* On the last day in June, it ruled, by a 5-to-4 vote, that any state program that offers a form of government aid must be equally available to any religious organization, if it would otherwise qualify for the aid. In this case, it was state scholarship money sought for parochial school students. The Constitution, the Court said, forbids states to deny equal access to public benefits, if the denial is based solely on the fact that the organization is religious.
* In the first of the two 7-to-2 decisions today, it decided that the Constitution’s First Amendment leaves it entirely to a religious employer to decide whether any of its workers is sufficiently involved in religious activity to be qualify for an exemption from federal laws that protect against job discrimination, such as bias based on age or disability. The First Amendment’s religion clauses, it said, demands that the discretion lie with the religious employer to shield itself from bias claims by its workers, to prevent government intrusion into internal religious affairs.
* in the second of those decisions, the Court allowed the Trump Administration to start enforcing a new rule that gives business firms – even large corporations whose stock is publicly traded – and non-profit charities, hospitals or colleges a right to exempt themselves on religious or moral grounds from a duty to provide free birth-control services to female workers of child-bearing age. The birth-control mandate, adopted under the Affordable Care Act (Obamacare), leaves the government with wide discretion to keep widening the exemption, the Court made clear.
Viewed in only those terms, the three rulings were deeply controversial. But, in the process of reaching those results, the Court actually did more.
In the school scholarship case, the Court left unresolved – and thus by implication allowed, for now – a religious organization to use the public money actually to advance its religious mission. (Some members of the Court, in fact, argued that the ruling should have gone further to expressly allow religious uses of the aid, but that did not gain majority support.)
In the job discrimination case, the Court broadly expanded the concept that the First Amendment demands a “ministerial exemption” to government job-regulating law – an exemption that is a creation of the courts, not something explicitly enacted as law or as a constitutional provision. In this case, two parochial school teachers claimed that they were let go because of their age or disability, but the Court essentially said that was beside the point, because the school decided they should be outside the bias law’s reach since it regarded them as quasi-ministers in the classroom.
In the birth-control access case, the Court actually suggested in a footnote that the government’s discretion on what to do about the mandate was wide enough that it could simply abolish the mandate when it next updates its rules. It also suggested that the broad exemption might be necessary to satisfy the federal Religious Freedom Restoration Act, a sweeping federal law supporting religious liberty. And, while the decision left open for further review in lower courts whether the Trump Administration had fully justified the wide sweep of the exemptions from the mandate, the lead opinion and a separate opinion discussed that point at length, seeming to limit what was realistically left to the lower court to decide.
The three new decisions solidified the current majority view that claims of religious freedom or religious liberty are deserving of significantly greater respect in law than prior courts have given them. This view is being actively promoted by two of the Justices, Samuel A. Alito, Jr., and Clarence Thomas, and they have been drawing regular support from one of the newer members, Justice Neil M. Gorsuch, and at least occasional support from the newest Justice, Brett M. Kavanaugh.
In each of the three latest examples of the trend, Chief Justice John G. Roberts has helped make the majority, even though in other areas of the law Roberts has continued to move more independently, as he did recently in joining the Court’s moderate-to-liberal bloc to make a majority in favor of expanded protection for equality for gays, lesbians and transgender people and to gather a majority to retain significant protection for women’s abortion rights.
What is being played out now is the judicial version of this era’s intense culture war between civil libertarians and those who hold a more traditional view of religion and its place in society. That war is related to the legal and political battle that has been waged for nearly a half-century over abortion rights. In fact, the tactics of advocacy now being deployed by religious conservative activists are in significant ways borrowed from those used so successfully by liberal groups’ lawyers during the revolutions in civil rights and women’s rights in the 20th Century.
A legally sophisticated, and well-financed, cadre of lawyers now work full time in advocating religion freedom causes. Early on, those advocates turned their attention to the “anti” side of the abortion question, and have more recently channeled their energy toward slowing the gay rights revolution that gained significant momentum with the same-sex marriage decision five years ago.
One of the conservative advocacy groups that helped energize the new legal initiatives, the Federalist Society, has regularly supplied President Trump with lists of potential Justices and federal judges to carry on the campaign. With Trump’s election, the conservative legal movement has made historic gains in staffing the federal bench – including, of course, the placement of Justices Gorsuch and Kavanaugh.
There is an old adage in American politics: “Elections have consequences.” The Supreme Court’s three religion decisions in recent days have provided further validation of that idea. And, of course, the future of the Court is already a lively issue in this year’s presidential campaign. Whoever is elected in November may, within just a few years, have several opportunities to shape the future Court’s membership.