In the last couple of Supreme Court terms, the Court has handled a lot of hot-button social and cultural issues. While the Dobbs decision that logically declared that infanticide was not a constitutional right and the recently decided Students for Fair Admissions vs. Harvard opinion dismantled the race-based admissions industry have drawn a lot of hate from progressives, I think it is safe to say that nothing has created “fear and loathing” like the Court’s religious liberty decisions.
In just a few years the Court has ruled that 1) religious institutions are largely exempt from lawsuits over employment practices, 2) Christian organization can’t be forbidden to fly its flag on municipal property, 3) coaches can’t be fired for holding spontaneous prayer after games (see The Bigoted Anti-Religious Left Loses Its Mind and Any Integrity It Had Over SCOTUS’ Kennedy Decision), 4) religious schools are eligible for state tuition assistance programs (see Supreme Court Decides the Free Exercise of Religion Clause Means Exactly That), 5) a Catholic foster care agency could not be forced to make placements with homosexual couples, 6) that an employer must make a legitimate effort to accommodate religious practices (Justice Alito’s Cutesy John-Roberts-Style Support of Religious Accommodation Will Create More Problems Than It Solves), and 7) a Christian can’t be forced to create products endorsing anti-Christian practices (Supreme Court Rules Christian Web Design Company Does Not Have to Promote Gay Weddings).
These decisions have inspired all kinds of end-of-the-world commentary by progressives, along with a fair amount of anthropological pieces that try to explain why people of faith insist on being able to practice their faith openly. One of these ran in the New York Times on Saturday titled The Supreme Court’s Disorienting Elevation of Religion.
I think part of the reason the writer finds the decisions “disorienting” is because she doesn’t understand America’s history all that well. At one time, everyone knew that the Pilgrims were fleeing religious persecution; now, they are symbols of an evil patriarchal culture victimizing harmless indigenous peoples and generally destroying the Earth. The idea behind freedom of religion, and not the bullsh** “freedom of worship” pushed by Barack Obama, is the idea the government does not have the right to compel a citizen to act against their conscience in matters of faith.
The 303 Creative opinion raises a question with possibly far-reaching implications: How will equal-treatment laws survive? The opinion’s lack of an obvious limiting principle — perhaps it encompasses just businesses whose goods or services can be described as expressive, although that’s certainly a large set — seems to suggest that many or most religiously grounded objections to public accommodations laws will be successful.
This could mean that same-sex couples wishing to exercise their constitutional right to marry would find themselves refused service by wedding vendors like bakers, photographers and calligraphers. And the license to discriminate may not stop there. What about birth announcements for the children of same-sex couples? Or entertainment at their birthday parties?
Nothing in the opinion limits its application to same-sex couples and their families. As Justice Sotomayor suggests, under the opinion’s reasoning, a school photo business could deny services to multiracial children on the grounds of an objection to interracial couples, or a corporate headshot business could refuse to photograph women on the basis of a belief that a woman’s place is in the home. If businesses choose to read this opinion broadly, its consequences for many Americans’ ability to obtain goods and services on equal terms could be staggering.
It is sort of fitting that Sotomayor is quoted, because the reasoning is as shallow and dishonest as anything the wide Latina has produced (Say What? Sonia Sotomayor Is Compared to Mazie Hirono After Astonishing Claims in AA, 303 Case Dissents). Can you envision a set of circumstances under which a public school district would sign a contract with a vendor who refused to photograph interracial children? Would it be possible for business specializing in portraits to refuse to serve professional women and survive?
In reality, 303 Creative only affects niche specialty companies that are easy to replace. Even if a bed-and-breakfast refused to accept [fill in the blank to make it as horrific as possible] there is no loss to the potential guest, and I’d think that the Yelp reviews would put the innkeeper out of business.
I believe that unless a government agency tells a business they are forbidden to sell to a particular race, sexual orientation, national origin, etc., then a business owner has the right to refuse to serve anyone who comes through the door. The only reason to insist that a business serve you against their will is to make a point (Progressives Seize on SCOTUS Case to Threaten to Refuse Service to Christians; I Completely Support Them).
One would think the Groff decision that only tinkered with the existing rule on religious accommodation was fairly harmless. But not in the eyes of the hostile-to-religion left.
In Groff, the court purported to “clarify” the 1977 Trans World Airlines v. Hardison opinion, which held that a religious accommodation at work was not required if it would impose a “substantial cost” on the employer; the Alito opinion explained that the Hardison formulation was insufficiently protective of religion. By elevating one set of needs — religious obligations — above all others, the court has undermined the ability of employers to respond to a diverse work force in ways that fairly account for different needs.
There is no reason to believe that the court is done. For example, there is little doubt that it will soon formally overrule its 1990 opinion in Employment Division v. Smith and jettison the longstanding rule that neutral laws of general applicability — which apply equally to all individuals, regardless of faith or other personal characteristics — are presumptively constitutional, even if they may impose some burdens on religion.
Depending on what the court offers in its place, laws governing everything from zoning to health care may be subject to successful challenge by people claiming that those laws burden their religious exercise.
For zoning laws, imagine that a house of worship claims that generally applicable laws regarding what kinds of structures can be built, or what kinds of activities they can house, burden their religious exercise.
I have to admit to having no idea what she’s talking about regarding zoning laws. As an aside, the history of religious challenges to zoning laws is one of the regulations used to prevent churches from being built or expanding. There have been dozens of legal challenges to churches establishing schools, daycare centers, homeless shelters, soup kitchens, etc. The law is pretty well set. This paper on the subject is a great place to start.
In health care, there has already been significant litigation asserting religiously grounded objections to providing certain kinds of health care; overruling Smith, together with other developments in the court’s religion jurisprudence, could mean that physicians, hospitals and employers gain a powerful new argument for refusing to provide certain services or coverage to patients or employees.
Private physicians should have conscience protections when it comes to performing abortions, euthanasia, and sex-change surgery. Non-government hospitals should have the same freedom to decide what elective procedures they wish to undertake. Employers should have the right not to purchase insurance coverage for morally reprehensible practices. Because otherwise, an order of religious women who have taken vows of celibacy and chastity would be forced to pay for abortion coverage.
There’s no question that religious liberty is an important American value, and one our Constitution and our traditions protect. But it is not the only such value.
The court’s elevation of religious exercise above all other principles poses a genuine threat to the ability of our businesses and institutions to make arrangements that account for the competing demands of America’s diverse population.
This is just nonsense. The writer proposes reducing an enumerated right under the Constitution to something nice to have so long as it doesn’t interfere with what is trendy. I would argue that freedom of conscience (First Amendment) and freedom from government overreach (Second through Tenth Amendments) are the only values we hold in common as a nation. At the bottom line, religious freedom is about being left alone to live according to your religious beliefs and not having random activists and bureaucrats telling you that you can’t. The real threat to America comes from people who desire to not only make you go along with whatever stupid idea they are selling but insist that you believe it as well.