Can the free exercise clause be used to establish white Christian religious norms? We may be about to find out

[Roger] Williams described the true church as a magnificent garden, unsullied and pure, resonant of Eden. The world he described as “the Wilderness,” a word with personal resonance for him. Then he used for the first time a phrase he would use again, a phrase that although not commonly attributed to him has echoed through American history. “[W]hen they have opened a gap in the hedge or wall of Separation between the Garden of the Church and the Wildernes of the world,” he warned, “God hathe ever broke down the wall it selfe, removed the Candlestick, &c. and made his Garden a Wildernesse.”

He was saying that mixing church and state corrupted the church, that when one mixes religion and politics, one gets politics. Then and there, in London amid civil war, he argued for what he began calling “Soul Libertie.” Baillie noted with dismay, “Mr. Williams has drawn a great number [of followers] after him.”

— John M. Barry, “God, Government and Roger Williams’ Big Idea,” Smithsonian Magazine, Jan. 2012

Is it possible to use the free exercise clause of the First Amendment to establish a narrow view of religion, one in which Mom and Dad and Buddy and Sis all pile into the ole station wagon and go to a nice white suburban church on Sunday morning? If a current trend on the U.S. Supreme Court holds, we may be about to find out.

And we may find out sooner than later, if a bill now making its way through the Georgia legislature becomes law. The bill would severely limit Sunday voting, a measure obviously aimed with near-surgical precision at Black churches.

If enacted, it’s sure to be challenged as a violation of the establishment and free exercise clauses of the First Amendment, and when (not if) it is, I’m gonna get out the popcorn.

Why? Because the Republicans on the court have been jumping through hoops to take pot-shots at blue-state governors. How? By claiming they violate the free exercise clause with public health mandates limiting public gatherings. Justice Neil M. Gorsuch’s concurring opinion in a November decision striking down New York Gov. Andrew Cuomo’s public health orders was especially uninhibited, according to this report in the New York Times:

“It is time — past time — to make plain that, while the pandemic poses many grave challenges, there is no world in which the Constitution tolerates color-coded executive edicts that reopen liquor stores and bike shops but shutter churches, synagogues and mosques,” Justice Gorsuch wrote.

The court’s order addressed two applications: one filed by the Roman Catholic Diocese of Brooklyn, the other by two synagogues, an Orthodox Jewish organization and two individuals. The applications both said Mr. Cuomo’s restrictions violated constitutional protections for the free exercise of religion, and the one from the synagogues added that Mr. Cuomo had “singled out a particular religion for blame and retribution for an uptick in a societywide pandemic.”

Writing in The Atlantic, Ronald Brownstein also quoted from Gorsuch’s flight of fancy:

In his concurring opinion in the New York case, Neil Gorsuch, Trump’s first Court appointee, denounced the state’s limits in unusually confrontational and barbed language.* Ignoring public-health arguments that indoor religious gatherings pose unique COVID-19 risks—because they involve large numbers of congregants in close proximity singing or speaking—Gorsuch portrayed New York’s rules as reflecting a singular disdain for religious devotion.

“At least according to the Governor, it may be unsafe to go to church, but it is always fine to pick up another bottle of wine, shop for a new bike, or spend the afternoon exploring your distal points and meridians,” Gorsuch wrote. “The only explanation for treating religious places differently seems to be a judgment that what happens there just isn’t as ‘essential’ as what happens in secular spaces.”

Brownstein, who is one of the more astute observers of the political scene, particularly of the demographic changes that drive it in recent years, says the New York decision, styled Roman Catholic Diocese of Brooklyn, New York v. Andrew Cuomo, Governor of New York, reflects a broader trend, both on the court and in 21st-century American society at large:

Gorsuch’s language in the New York case echoed an unusually antagonistic recent speech from Justice Samuel Alito to the conservative Federalist Society. In that address, Alito also portrayed religious believers as under siege from an increasingly secular society. “Religious liberty,” Alito insisted, “is fast becoming a disfavored right.” Brett Kavanaugh, another Trump appointee, expressed similar deference to religious-liberty arguments at his confirmation hearings. Jenny Pizer, senior counsel for Lambda Legal, which focuses on cases involving gay rights, spoke for many critics when she told me the justices’ rhetoric was tinged with “a white-Christian religious-victim narrative that we’ve been hearing amplified for one decade, two decades now.”

It’s that white Christian victim mentality that’s concerning. Brownstein suggests it’s coming about because white Christians feel threatened by changing demographics, not only racial but generational as more Americans in the younger age brackets tune out on organized religion. He frames it like this:

The Supreme Court’s decision last week overturning New York State’s limits on religious gatherings during the COVID-19 outbreak previewed what will likely become one of the coming decade’s defining collisions between law and demography.

The ruling continued the conservative majority’s sustained drive to provide religious organizations more leeway to claim exemptions from civil laws on the grounds of protecting “religious liberty.” These cases have become a top priority for conservative religious groups, usually led by white Christians and sometimes joined by other religiously traditional denominations. In this case, Orthodox Jewish synagogues allied with the Roman Catholic Diocese of Brooklyn to oppose New York’s restrictions on religious services.

Most prominent have been the Hobby Lobby and gay wedding cake cases, in which the court has allowed businesses to discriminate against LGBTQ couples and employees seeking birth control under company insurance plans. But they show a “fragility” on the part of white Christians, and Brownstein predicts fireworks ahead:

While most conservative analysts have cheered the Court’s moves in this area, centrist and liberal critics see the ingredients for a political explosion as the Court backs religious-liberty exemptions to laws on employee rights, health care, education, and equal treatment for the LGBTQ community.

“What we are seeing today is this effort to turn religious freedom into religious privilege,” Rachel Laser, the president and CEO of Americans United for Separation of Church and State, told me. Religious institutions and individuals are being given “the right to wield religious freedom as a sword to harm others, and frankly to dial back social progress in light of our changing demographics and progress toward greater equality.”

Read: The ‘religious freedom’ agenda

Indeed, the succession of recent religious-liberty rulings by the conservative Court majority may represent another manifestation of the fear of cultural and religious displacement that helped Donald Trump amass huge margins among white Christian voters in both of his campaigns. “We are dealing with a majority-conservative Court that suffers from the same Christian-fragility disease as we are seeing in Trump’s base—as though Christianity is what’s under attack when others are asking for equal treatment,” Laser said.

In all these ways, “religious liberty” seems certain to become an even more crucial battlefield as the political cold war grinds on between a Republican coalition that mostly reflects what America has been and a Democratic coalition centered on what it is becoming.

Brownstein’s article takes a deep dive into the demographics, quoting Public Religion Research Institute studies in detail and adding:

As white Christians have receded in the population, political and religious conservatives are consolidating behind the claim that believers face widespread discrimination. In the latest PRRI American Values Survey, more Republicans said that Christians face “a lot of” discrimination (62 percent) than believed the same about black people (52 percent) or any other group. White evangelical Christians, the religious foundation of the GOP’s electoral coalition, were even more likely to say that Christians face significant discrimination (66 percent). As with Republicans, more white evangelicals identified Christians as facing bias than said the same about any other group.

Robert P. Jones, PRRI’s founder and CEO and the author of several books on the changing status of white Christians in America, sees a firm link between the ongoing demographic decline and the rising sense among white Christians that they face inequities. “When you can’t even say demographically we’re a majority-white, Christian country—much less culturally or politically—that’s a really different milestone,” he told me. “I do think the sense that something is sunsetting, something is ending … has set off the kind of feeling of vulnerability, feeling of persecution, feeling of grief, all these things. Trump didn’t create them, but he has stoked those worries and concerns.”

All of which suggests Justice Gorsuch’s little tantrum in Diocese of Brooklyn v. Cuomo may be a harbinger of things to come.

Works Cited

John M. Barry, “God, Government and Roger Williams’ Big Idea,” Smithsonian Magazine, Jan. 2012 https://www.smithsonianmag.com/history/god-government-and-roger-williams-big-idea-6291280/.

Ronald Brownstein, “The Supreme Court Is Colliding With a Less-Religious America,” The Atlantic, Dec. 3, 2020 https://www.theatlantic.com/politics/archive/2020/12/how-supreme-court-champions-religious-liberty/617284/?utm_medium=offsite&utm_source=flipboard&utm_campaign=all.

Nick Corasaniti and Jim Rutenberg, “In Georgia, Republicans Take Aim at Role of Black Churches in Elections,” New York Times, March 6, 2021 https://www.nytimes.com/2021/03/06/us/politics/churches-black-voters-georgia.html.

Roman Catholic Diocese of Brooklyn, New York v. Andrew Cuomo, Governor of New York, 592 U. S. __ (2020), Nov. 25, 2020 https://www.supremecourt.gov/opinions/20pdf/20a87_4g15.pdf.

[March 7, 2021]