Tuesday, November 17, 2020

Religious Liberty as Religious Supremacy: Why Justice Alito's Federalist Society Speech was Paranoid and Inaccurate

 By Eric Segall

Justice Samuel Alito’s partisan speech to the Federalist Society last week caused quite a stir among both the left and the right, with both sides lining up to criticize or applaud the presentation based on their political views. He said many things that perhaps Supreme Court Justices should keep to themselves. But the part of Alito’s remarks that focused on the alleged persecution being heaped on people who object to same-sex marriage on religious grounds, and his overall argument that "religious liberty is in danger of becoming a second class right," raise important issues concerning the separation of church and state (or-non-separation) and suggest Justice Alito has a perverse and counter-factual perspective on the state of religious liberty in America.

People of faith, according to many, have a right to be exempt from laws applicable to the rest of us, if complying with those laws substantially burdens their religious exercise, but secular objectors attending official government meetings (often coercively) are expected to respectfully put up with their discomfort with official prayers or leave the room, chamber, or capitol building. Non-believers have also been told by the Supreme Court to accept religious symbols (usually Christian) on government property. This hypocrisy is unnecessary, triggers culture wars, and shows that religious supremacy, not religious liberty, is Justice Alito's, and the Court's, preferred constitutional value.

In Greece v. Galloway, the Supreme Court told non-Christians that they should just accept sectarian religious prayers at the town's legislative sessions. Here is how I previously described the case:

For eight years beginning in 1999, the town of Greece, New York, began its legislative sessions with prayers given exclusively by Christian clergy. Many of the prayers referred to “Jesus,” the “Holy Ghost,” and other religious deities and symbols. The prayer giver often asked those in attendance to bow their heads and was frequently thanked for being the “chaplain of the month.” Among the many people present during these legislative sessions were residents who had to conduct official business with the town board as well as students fulfilling high school civics requirements by attending the sessions.

In response to an establishment clause challenge to this practice, the five conservative Justices, including Alito, responded that the prayers at issue simply recognized the importance of religion in American life, and non-believers could always leave the room, remain silent, or protest later. The Court also pointed put that if those in attendance remained silent, no one would construe that silence as approval of the prayers. In short, in the famous words of Justice Scalia talking about Bush v. Gore, the Greece Court effectively said to the plaintiffs, "get over it." Justice Kagan expressed a quite different view in dissent:

For centuries now, people have come to this country from every corner of the world to share in the blessing of religious freedom. Our Constitution promises that they may worship in their own way, without fear of penalty or danger, and that in itself is a momentous offering. Yet our Constitution makes a commitment still more remarkable—that however those individuals worship, they will count as full and equal American citizens. A Christian, a Jew, a Muslim (and so forth)—each stands in the same relationship with her country, with her state and local communities, and with every level and body of government. So that when each person performs the duties or seeks the benefits of citizenship, she does so not as an adherent to one or another religion, but simply as an American. I respectfully dissent from the Court’s opinion because I think the Town of Greece’s prayer practices violate that norm of religious equality—the breathtakingly generous constitutional idea that our public institutions belong no less to the Buddhist or Hindu than to the Methodist or Episcopalian.

The Court's decision in Greece allowing primarily Christian prayers at legislative sessions suggests that Justice Alito's railing against alleged attacks on religious liberty were overstated to say the least. The Court's decisions last term requiring states to fund private religious schools if they fund secular private schools and allowing a broad exemption from federal anti-discrimination laws for religious schools, as well as the Court's 2019 decision upholding a 40 foot cross on government property, belie the notion that religious liberty is under attack in America.

Yet, in his speech, Alito suggested that Jack Phillips, the Colorado baker who refused to make a wedding cake for a same-sex couple, should have prevailed on religious liberty grounds, and that Colorado's efforts to curb discrimination against gays and lesbians constituted religious discrimination at least in some circumstances. Alito noted that there was "no reason to think" that Phillips's refusal "would deprive any same sex couple of a wedding cake. The couple that came to his shop was given a free cake by another bakery, and celebrity chefs have jumped to the couple's defense." In other words, the same-sex couple who were turned away from Phillips' bakery in violation of state law and solely because they were man and man, not woman and man, should, like the plaintiffs in Greece, essentially get over it, because the couple could obtain a cake somewhere else. 

Both Justice Alito individually, and the Court's conservatives generally, have constructed a first amendment regime where non-believers are told to get over official government recognition and endorsement of religion at public functions or religious symbols on government property, but people like Jack Phillips are allowed to evade the non-discrimination requirements of state and federal laws based solely on offense to their religious conscience. Notice that the government placed no obstacle between Phillips and his method of worship, prayer, or religious exercise. He was simply asked to subordinate his religious offense to same-sex marriage in order for Colorado to continue its quest to provide equality to gays and lesbians. He could have and did protest that decision publicly and he could have made clear that his agreement to make the cake did not in any way suggest support for same-sex marriage. He was just being required to follow the law. Why wasn't Phillips simply required to "get over it?" The answer sounds in religious supremacy, not religious liberty (I'm making no claim about the admittedly hard free speech issues raised by the case and also discussed by Justice Alito in his speech).

Religious liberty is not only alive and well in America but it is often given a favored status over important non-religious government objectives. Whether that state of affairs is desirable or constitutional, it clearly shows that Justice Alito is paranoid when it comes to the state of faith in America. Maybe, he should just get over it.


Joe said...

Religious liberty includes freedom for and from religion as seen by the two parts of the of religious clause in the First Amendment. Alito uses "religious liberty" in the way some of his ilk do -- religious liberty for certain people.

Greg said...

While I agree with your general point, the case involving the Bladensburg Cross wasn't really that close, and represents exactly the kind of case where we have to decide as a society what the bounds are between religious and non-religious adherence in a civil society.

The facts surrounding the cross point to it largely being the kind of thing that governments do all the time, and ought to be allowed to continue to do: preservation of historically significant artifacts by taking ownership and maintaining them, many of which happen to be religious and some of which happen to be large. As a non-religious person, I nevertheless respect and support the desire to preserve significant artifacts of our history, including religious artifacts. Should the government be required to destroy or sell to private collectors any historical artifact that has any religious significance to any world religion? I certainly hope not.

While I genuinely believe that there is not a "War on Christianity" or anything of the sort, the attack on the Bladensburg cross is not a poster child for that argument. Indeed, some with stronger religious views could reasonably argue that it actually does represent an attempt to re-write history and erase religion from public life altogether.

Even Town of Greece could be seen through this lens, although there the selection process was and is currently suspect, and legitimately does seem to represent a bias towards Christianity. As pretty much all of the participants in this blog have pointed out, the cases that make it to the Supreme Court usually aren't the easy cases, they're the ones that involve conflicts between values or require interpretation of vague constitutional direction.

The only "clearly" pro-religious exercise case here was the Colorado Baker case, where I think most reasonable people who support protection from discrimination know where the line is: "The content of the cake is speech, who you sell the cake to is not." This particular decision the justices dodged the issue, but I have no doubt the new Court will take care of that as soon as possible and rule in favor of religion over minorities.

Joe said...

A reply to the second comment to give a contrary view.

I have no problem with preserving artifacts as a general matter though that sort of thing is usually done by museums, if often with some sort of public funding.

A forty foot cross in the middle of the road, passed by lots of traffic [different in that sense than another more flimsy cross in the middle of no where, subject of a case Kagan argued as solicitor general], is a tad different. The strong possibility of endorsement, which other details add, is present. And, as the dissent noted, there was a way for it to be transferred to a private party.

It does not "erase religion from public life" to do that. Religion will be in public life in a range of ways. A gigantic government supported cross, however, sorta stands out here. It isn't just even a creche in a holiday display or something at a court house. It is a gigantic permanent sectarian object in the middle of the damn road.

The Town of Greece case was also a bit gratuitous. Kagan didn't want to totally end the practice (as a few do). The debate was the nature of the selection process. This has came up over the years. Some places have shown in purpose or effect disfavoring of certain beliefs. Religious liberty for all should flag that. Others are more respectful. Humanists, e.g., have given invocations without incident.

This is interestingly phrased: "I have no doubt the new Court will take care of that as soon as possible and rule in favor of religion over minorities." Or, A religious minority over a certain minority. We saw this in the case out of Philadelphia where it was suggested race was different. And, many have religion and don't find anything wrong with civil rights laws. At least, for some minorities.

The cross and invocation practices are to me both things with some religious content. A cross is religious symbol people up to honor the dead and since we are generally a Christian majority country, it has lost much religious flavor for many. But, a Jew or Muslim very well might not put a cross on their grave. The invocation practice is a lingering bit of religion in public bodies too like the chaplain who opens up the day at the U.S. Congress. In both cases, it will continue for the immediate future.

So, I say we should try to handle it with some care. Thus, the dissents.

Mat said...

There is another aspect to this that should be noted. When it comes to individual religious liberty the tables are turned. For example, if you a an employee (even of the government), and you can be rejected for an accommodation for your religious observance if it imposes anything more then a "de minimis" burden. So a religious organization or business can exempt themselves from laws if they want, but an individual can not get a minor company policy waived if causes any extra cost or effort to the business. Thus I find the cry of "religious freedom" to be quite hollow.

Eric Segall said...

Greg, I don't think the cross case or even Greece were necessarily wrongly decided. I mentioned them to show there is no war on religion but more importantly to show how the Court has interpreter the two religion clauses to expect non-believers to accept and respect faith but exempt believers from generally applicable laws the rest of us have to abide by. That is a terrible combination and amounts to religious supremacy not liberty.

Paul Scott said...

Religious liberty is nothing more than a power play. That it is very effective does not change that fact.

The economic policies of the conservative movement range anywhere from unpopular to wildly unpopular. Similar to my comments below in Neil's post about a zombie idea, I would say here it is essential to the survival of economic conservatism that culture battles remain prominent.

The the Democratic party embraced all of the conservative culture war issues and we had a realignment of Liberal economics combined with Conservative social policies vs. Conservative economics and Liberal social issues (this latter joining is, essentially, Libertarians), then we would have one dominant party with some rebranded minor parties - mostly Libertarians and Greens.

Alito is more politician than Justice, and thus he understands that it is not enough that the GOP support Christian supremacy with the religious liberty dog whistle, but that the acts of support are sufficiently egregious that Democrats actively oppose them - thus maintaining the war that keeps the GOP alive.

Greg said...

Prof. Segall, maybe I'm misunderstanding what you mean by religious supremacy. If you mean that religious beliefs are given slightly more legal deference than other forms of belief, then, for better or worse, that seems to be exactly what the founders intended, or at least what they enacted in the first amendment. It seems to me that you are saying something significantly stronger than that, aren't you?

I also apologize for not mentioning the other case you included that strongly makes your point, the ridiculous decision that states cannot choose to restrict direct funding of religion as a way to avoid potential establishment clause violations, even if they are willing to forego funding equivalent secular activities in order to avoid the potential free exercise conflicts this could create.