10/6/2020
The Religious Hijacking of the Supreme Court Doesn’t Require Amy Barrett
Breaking Newstags: abortion, Supreme Court, religious right, reproductive rights, Amy Coney Barrett, LGBTQ rights
Supreme Court nominee Amy Coney Barrett has already drawn a substantial amount of scrutiny for her conservative religious beliefs and her potential willingness to overturn Roe v. Wade. An originalist in the mold of her mentor Justice Antonin Scalia, Barrett could hamper liberal causes for decades to come. But it’s perhaps underappreciated just how much the conservative religious takeover of the court has long been underway. If Barrett is confirmed, she will join a bench that has already tipped the balance of church and state toward the former. Even if she isn’t confirmed, make no mistake—this trajectory is already laid in.
The last Supreme Court term brought a landmark win for LGBTQ individuals in the United States, with the ruling that Title VII of the Civil Rights Act prohibits discrimination on the basis of sexual orientation and gender identity. Liberals rightly celebrated the ruling as a substantial, and unexpected, victory. But in three other cases that drew less coverage from the media—Espinoza v. Montana Department of Revenue, Our Lady of Guadalupe School v. Agnes Morrissey-Berru, and Little Sisters of the Poor v. Pennsylvania—the court took positions that could undermine those newly won rights. In these matters, the majority of the court endorsed a growing and dangerous interpretation of religious freedom that leaves many Americans vulnerable to the discriminatory religious beliefs of others.
Columbia Law professor Katherine Franke describes the underlying ideas of the majority as “free exercise supremacy.” According to Franke, the court has created a tiered set of rights, where religious freedom is a first-class right, but sexual equality, LGBTQ rights, and reproductive rights are second-class. Franke believes the court’s language is particularly telling. “As you read the opinions, what you have is a kind of sterile, mechanical reasoning in equality cases and a deep moral reasoning in religion cases,” she said. “You get the sense that religious liberty is fundamental to American democracy, but equality is just reading a sentence in the statute.”
We may soon see this reasoning play out. In a case coming up in November, the Supreme Court might grant a pass to religious government contractors who don’t want to comply with civil rights laws. It’s a ruling that could cement the legal weaponization of religious freedom that began more than five years ago, and the court’s current majority doesn’t require Barrett’s participation to see this through.
The contemporary period of errant religious freedom law kicked off with the Supreme Court’s 2014 Burwell v. Hobby Lobby ruling, which exempted the craft store from the Affordable Care Act’s contraception mandate because of its owners’ religious views. The ruling was a radical departure from previous law, which had generally protected the religious rights of churches and individuals but not for-profit corporations.
comments powered by Disqus
News
- The Debt Ceiling Law is now a Tool of Partisan Political Power; Abolish It
- Amitai Etzioni, Theorist of Communitarianism, Dies at 94
- Kagan, Sotomayor Join SCOTUS Cons in Sticking it to Unions
- New Evidence: Rehnquist Pretty Much OK with Plessy v. Ferguson
- Ohio Unions Link Academic Freedom and the Freedom to Strike
- First Round of Obama Administration Oral Histories Focus on Political Fault Lines and Policy Tradeoffs
- The Tulsa Race Massacre was an Attack on Black People; Rebuilding Policies were an Attack on Black Wealth
- British Universities are Researching Ties to Slavery. Conservative Alumni Say "Enough"
- Martha Hodes Reconstructs Her Memory of a 1970 Hijacking
- Jeremi Suri: Texas Higher Ed Conflict "Doesn't Have to Be This Way"
Trending Now
- New transcript of Ayn Rand at West Point in 1974 shows she claimed “savage" Indians had no right to live here just because they were born here
- The Mexican War Suggests Ukraine May End Up Conceding Crimea. World War I Suggests the Price May Be Tragic if it Doesn't
- The Vietnam War Crimes You Never Heard Of