This morning Andrew Koppelman, a law professor at Northwestern, weighed in on the U.S. Supreme Court’s April 9 decision invalidating a California public health department restriction on indoor gatherings. While some of his rhetoric was.uh.– shall we say? — more flamboyant than professorial, he raised some important issues. So I shared it to social media with the above comment.

In an April 18 analysis of the decision, Ben Christopher of Capital Public Radio in Sacramento made it clear the Supreme Court succeeded in intimidating the health officials:

After more than a year of legal tussling with state public health officials over restrictions on indoor gatherings, houses of worship — mostly evangelical or Catholic and politically conservative — have been on a winning streak at the nation’s highest court. 

Their latest victory came late last week when the U.S. Supreme Court’s conservative majority put a hold on the state’s limits on indoor Bible study and other forms of worship. Most legal battles play out over years, and this was a preliminary decision; the justices reversed an appellate court’s decision not to suspend the state’s rules while the broader case plays out. But the court’s majority went out of its way to note a clear trend. 

“This is the fifth time the Court has summarily rejected the Ninth Circuit’s analysis of California’s COVID restrictions on religious exercise,” the opinion reads, referring to the federal appeals court based in California.

Taking the hint, California’s Department of Public Health promptly re-inked its regulations, stressing that though “limits on places of worship are not mandatory” any longer, they are still “strongly recommended.”

Christopher’s analysis traces the court’s evolution on religious First Amendment cases before and after Justice Amy Barrett was appointed just before the 2020 election. He also makes it clear the shift on the high court, and it has political implications “that could provide a new, sharper check on the state’s Democratic lawmakers even after most of us are vaccinated and even if the state fully reopens as planned on June 15.”

It’s alarming. I’ve been following the Supreme Court since I studied the history of Anglo-American for my doctoral dissertation during the Watergate crisis, and the court is edging into territory where no American court has ever been before. So while I would tone down Koppelman’s rhetoric a little, I share his concern about a drift toward theocracy — more narrowly about a de facto establishment of certain conservative, authoritarian faith traditions by a free-wheeling approach to the free exercise clause.

This trend has been going on for quite some time. In fact, it precedes Trump’s appointment of Justice Barrett and other extreme right-wingers to the court by several years. In 2012, when anti-abortionists were challenging the Affordable Care Act on First Amendment grounds, sociologist Philip Gorski of Yale said it is the latest manifestation of a conflict that goes all the way back to the beginnings of the American political system. He added:

One source of the present crisis in American politics—far from the only one, to be sure—is the absence of voices capable of providing a moral check on partisan politics (and ruthless profiteering). The liberal Protestant proto-establishment that once stood in judgment over American political life is now vastly diminished in size and influence. Its usurper, the conservative evangelical anti-establishment, mostly lacks the intellectual heft and the institutional coherence that the role requires. At first glance, the Catholic Church seems better suited to the part. It surely is not lacking in intellectual heft. But some of its recent actions raise questions about its autonomy from the Republican establishment. And secular intellectuals? They generally seem wary of a public role—and mostly disdainful of religion.

Perhaps the real problem is not that religion has insinuated itself into politics, but precisely the reverse: that the ineluctable but potentially productive tension between religious and political ethics has been dissipated.

On the right, intellectuals whose political compasses no longer register the pull of equality would steer us toward the libertarian shores of marketopia, there to worship the shallow freedom of a false god who promises a guilt-free, consumer cornucopia, a heaven-on-earth where everyone is upper class. Asked why he entered politics, the Republican wunderkind Paul Ryan cited Ayn Rand’s Atlas Shrugged rather than the social teachings of his own Catholic Church (although he revised his position following a rebuke from the bishops).

On the left, relativists beckon us to the Kingdom of Whatever, a vast archipelago where Robinson Crusoes diligently—and anxiously—prostrate themselves before their god of the moment. A new guru like the self-described Übermensch Tim Ferriss preaches an eclectic gospel of busy self-realization in the land of liberal, educated bohemia—Get in shape! Start a business! Take a vacation! Have an orgasm! Clean up your e-mail! It’s a narcissistic gospel, utterly devoid not only of justice and charity, but any concern with other human beings except as means to self-regarding ends.

Both courses portend disaster. A republic cannot survive without some measure of civic solidarity that extends beyond blood kin and co-religionists. Neither can it survive without some measure of civic virtue, the government of self, and the spirit of sacrifice. Somewhere between the kingdoms of Paul Ryan and Tim Ferriss lies the vital center of American politics.

Several years later, in 2017, Gorski would elaborate on that dichotomy in American Covenant: A History of Civil Religion from the Puritans to the Present, described by its publisher as an “authoritative account of the long battle between exclusionary and inclusive versions of the American story.” It appears more and more likely that the Supreme Court is coming down hard on the exclusionary side of the equation.

Works Cited

Ben Christopher, “With Barrett On Supreme Court, California’s Church COVID Limits Are Being Overturned,” CalMatters, April 18, 2021, Capital Public Radio, Sacramento https://www.capradio.org/articles/2021/04/18/with-barrett-on-supreme-court-californias-church-covid-limits-are-being-overturned/ .

Philip S. Gorski, “Breaching the Wall of Separation Between Church and State,” Chronicle of Higher Education, July 30, 2012 https://www.chronicle.com/article/breaching-the-wall-of-separation-between-church-and-state/.

Andrew Koppleman, “The Supreme Court Creates and New Religious Aristocracy,” The Hill, April 19, 2021 https://thehill.com/opinion/judiciary/548912-the-supreme-court-creates-a-new-religious-aristocracy.

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