For several months now, I’ve been wondering if the U.S. Supreme Court’s First Amendment fundamentalism on the “free exercise” clause is going to lead them to weaken protections under the “establishment” clause. I blogged about it HERE, HERE and HERE, toward the end of the court’s spring term when decisions with troubling implications for church-state relations were pelting down like raindrops.

Now comes a discussion, toward the end of an excellent profile by the New Yorker’s Margaret Talbot of Justice Amy Coney Barrett, that makes it appear I’m not the only one who’s worried about that.

In fact, Micah Schwartzman, a U.Va. law professor quoted herein, comes out and says it: “This Court, more than any in American history, is prepared to give religion privileged treatment—to prefer it over nonreligious views.”

Talbot’s profile is headlined “Amy Coney Barrett’s Long Game.” The long game, as I read it, could refer to Barrett’s personal philosophy or the hard-right Federalist Society’s strategy for remaking the court in its own image. Either way, her ascent to the court tipped the balance to a 6-3 arch-conservative majority that seems poised to breach the wall between church and state in a way that could privilege a conservative ethos shared by a subset of evangelical Protestants, old-school Catholics and Orthodox Jews to the exclusion of secular Americans, adherents of minority religions and just about everyone else.

Verbatim excerpts from passages concerning the drift toward theocracy follow:

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[…] October she joined Kavanaugh and Breyer in declining a request to block Maine’s vaccine mandate for health-care workers who objected on religious grounds.

In general, though, Barrett has been consistent in siding with plaintiffs who argued that pandemic restrictions had unfairly constricted the free exercise of their faith. Soon after her confirmation, she joined Gorsuch, Alito, Thomas, and Kavanaugh in supporting the Roman Catholic Diocese of Brooklyn’s challenge to limits set by New York State on the number of religious congregants who could gather for services. On January 13th, she voted with the conservative bloc to reject the Biden Administration’s mandate for large employers to require their workers to be vaccinated or to be tested regularly. And although a majority of the Justices allowed the Administration to proceed with a narrower mandate, one applying only to employees at health-care facilities that participate in Medicare and Medicaid, Barrett signed on to dissents by Thomas and Alito.

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In a religion case in which Barrett wrote a concurrence, it was possible to infer that she is inclined to move more slowly and gingerly than some of her conservative colleagues. But you could also see how much more receptive the Court has become to religious claims, and how Barrett solidifies that shift. The Justices were weighing whether the City of Philadelphia could deny contracts to a Catholic social-services agency that would not place foster children with same-sex couples. In a narrow, unanimous decision, the Court said that, for technical reasons, Philadelphia could not refuse to work with the Catholic agency—thus dodging the bigger question of what to do when gay rights and religious rights clash. Alito was incensed by this caution. He’d seen the case as an opportunity for the Court to toss out a 1990 ruling that he and many conservatives loathe, Employment Division v. Smith, which had held that a neutral, generally applicable law doesn’t violate the free exercise of religion. In a blistering seventy-seven-page concurrence in the Philadelphia case, Alito complained that the Court had “emitted a wisp of a decision that leaves religious liberty in a confused and vulnerable state.”

Barrett wrote a short, cogent concurrence in which she said that although she also found Smith problematic, she wasn’t ready to discard it. She listed questions that would need to be answered first, and said that she was “skeptical about swapping Smith’s categorical antidiscrimination approach for an equally categorical strict scrutiny regime, particularly when this Court’s resolution of conflicts between generally applicable laws and other First Amendment rights—like speech and assembly—has been much more nuanced.” The Wall Street Journal editorial page, among other conservative commentators, was dismayed by Barrett’s own nuances. But Kelly Shackelford, of First Liberty, told me that Barrett had set the stage for a future case that could take Smith down. “It’s good those questions she asked are laid out,” he said, so that they can be duly “addressed in scholarship and in other legal arguments.”

Some people I spoke with wondered if Barrett had staked out a position different from Alito’s because the Smith opinion had been written by her mentor Scalia. Smith belonged to an earlier era of religious-freedom jurisprudence, in which cases were frequently brought on behalf of religious minorities. Smith had centered on two Oregon men who had been fired from their jobs for using peyote, an illegal substance, in Native American religious rituals. The Justices had held that the state hadn’t discriminated against them on religious grounds when it denied them unemployment benefits, because a state law forbidding the use of peyote applied to every resident equally.

Nelson Tebbe, a constitutional-law professor at Cornell, told me that most religious-freedom litigation is now “being brought by the largest religious groups, including Protestant evangelicals and Catholics.” Tebbe explained that these litigants would likely say that such lawsuits have become necessary “because the government has become more progressive, and more willing to regulate long-cherished beliefs and practices.” Various Christian groups have framed the recognition of same-sex marriage, civil-rights protections for L.G.B.T.Q. people, and the guarantees of contraception coverage under the A.C.A. as violations of other Americans’ right to exercise their religion.

It’s an argument that assertively expands the scope of the free-exercise clause to cover not just worship, proselytizing, and religious education but, increasingly, activities in the public square that impinge directly on other people—such as refusing to get vaccinated or to provide wedding goods for a same-sex couple. Robert Tuttle, a law professor at the George Washington University who writes extensively about the religion clauses, described this phenomenon as trying to “insure that the faithful can exempt themselves from norms that legal or majoritarian processes have changed.” He went on, “The battle is to get control of institutions, reverse these norms, and reinstate a moral order compatible with their faith.”

Lee Epstein and Eric Posner, in their article on the Supreme Court’s religion jurisprudence, found that rulings in favor of religion have increased from about forty-six per cent under Chief Justice Earl Warren (whose tenure ran from 1953 to 1969) to eighty-three per cent today, with the biggest leap occurring under Roberts. “The Warren Court religion cases were notable for protecting minority or non-mainstream religions,” Epstein and Posner write, because at the time mainstream Christian groups weren’t claiming a beleaguered status. When non-mainstream plaintiffs have come before the Roberts Court, they have also fared well, lending some credence to what Alito and other conservatives insist—that they care about religious liberty writ large, not just for Christians. The sole exception that Epstein and Posner found, however, is a telling one: when Hawaii challenged Trump’s 2017 travel ban under the establishment clause of the First Amendment, saying that it discriminated against Muslims, the Supreme Court upheld the ban.”

In December, the Court heard another important church-state case. The State of Maine pays private-school tuition for families living in rural areas that lack a public secondary school, but historically it has excluded religious schools from the arrangement. Three couples sued Maine, saying that their First Amendment rights had been violated by the state’s refusal to subsidize their children’s education at religious schools. Most scholars and journalists following the case think that the Justices will rule for the families, with implications for other cases centered on church-state separation. Micah Schwartzman, the U.Va. professor, said, “This case is going to tell us a lot about how far the Court will go in allowing the funding of private religious schools. This Court, more than any in American history, is prepared to give religion privileged treatment—to prefer it over nonreligious views.”

During the oral argument, Barrett questioned the lawyer arguing for the State of Maine about why children attending religious schools could not receive tuition from the state, too. “All schools, in making choices about curriculum and the formation of children, have to come from some belief system,” she said. With public schools, school boards made decisions about “the kind of values that they want to inculcate in the students.” She continued, “I mean, how would you even know if a school taught ‘All religions are bigoted and biased,’ or, you know, ‘Catholics are bigoted,’ or, you know, ‘We take a position on the Jewish-Palestinian conflict because of our position on, you know, Jews’?”

This was an eyebrow-raising question—and not only because Barrett seemed to be conflating “Jewish” and “Israeli.” Tebbe said, “She was articulating a certain conception of neutrality. Opponents of the idea of church-and-state separation have often said that eliminating religion from public schools is not neutral—it’s imposing a religion of secularism. In previous eras, though, the Court was quite clear that, no, that’s not the case—it’s just enforcing a separation between church and state.” Barrett’s idea, which the Court seemed ready to embrace, was that education was inevitably a value-based enterprise, and that religion was just one perspective among many.

Though conservative Justices now dominate the Court, it is striking how firmly they hold to the notion of themselves as persecuted figures in a hostile America. Alito, one of the most powerful people in the country, seems chronically put out. In 2020, after a long string of Court victories for religious-freedom lawsuits, he gave a speech to the Federalist Society in which he warned that “in certain quarters, religious liberty is fast becoming a disfavored right.” He also asserted that “the right to keep and bear arms” was “the ultimate second-tier constitutional right.” The America of 2022 is quite plainly not a country where citizens’ ability to worship freely is in jeopardy. Nor is the nation on the cusp of cancelling gun rights. Yet the conservative Justices often act as if they were alone in a broken elevator, jabbing the emergency button and hollering for help.

The reality is that Americans face a future in which the Court, much like the rest of the country’s political infrastructure, will be imposing an array of conservative, minority views, some of them religiously based. A majority of Americans want to keep abortion legal, but the Justices may well overturn Roe anyway. Some states will act to preserve abortion rights, and Americans with resources will travel to those states or procure abortion pills online; revoking the legal right won’t stop people from terminating pregnancies. The burden will fall disproportionately on poor women and women of color. In the coming months and years, the Justices will be weighing cases on affirmative action, gun rights, voting restrictions, immigration, environmental regulation, and the separation of church and state. Their rulings on many of these issues won’t be that hard to guess, however often they insist that they are guided merely by their close and unpredictable readings of foundational texts.

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Cite: Margaret Talbot, “Amy Coney Barrett’s Long Game,” New Yorker, Feb. 7, 2022 https://www.newyorker.com/magazine/2022/02/14/amy-coney-barretts-long-game

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