by Sherry F. Colb
As many people have noticed, the U.S. Supreme Court has been pumping up the Free Exercise Clause of the First Amendment over the last few years. In theory, Employment Division v. Smith, which demands only that government not discriminate against religious practice or religion, remains the law. In practice, however, the Court sees discrimination against religion everywhere--even when religion is simply not enjoying a special exemption from a generally applicable law--so the Smith standard is effectively an illusion. And even when the Court is not expressly invoking religion, it is subtly relying on its members' religious beliefs. The oral argument in Dobbs v. Jackson Women's Health Organization, an abortion case, is an example: the attorney pressing the Court to overrule Roe v. Wade relied very much on the belief that the raw materials with which women make babies inside their bodies, including zygotes and embryos, are already babies. Justice Sotomayor called out this sleight of hand in asking the Mississippi Solicitor General, "How is your interest anything but a religious view... ? [W]hen you say this is the only right that takes away from the state the ability to protect a life, that's a religious view."
She is correct, of course, notwithstanding the religious right's stubborn insistence that "science" tells us that a zygote, a single cell that results from a sperm cell swimming into an egg cell, is a little person, a homunculus, a baby, a signal that reproduction has already happened rather than being the raw material that it plainly is. When virtually everyone who believes in a proposition is a religious person and virtually every secular person rejects the same belief as absurd, it is clear that we have before us a religious and not a scientific belief.
Wait a minute, though, say some progressives. Maybe we can use this pro-religion approach to help further moral objectives that matter to liberal and left religious people. After all, we could characterize much of the progressive agenda as religious in nature: feeding the hungry, housing the homeless, educating children, and treating outsiders with kindness and friendship rather than suspicion and judgment. My colleague Emeritus Professor Steven Shiffrin wrote a book premised on the idea of harnessing the religious left.
I even received a message from a scholar of Jewish law proposing that protecting the free exercise of Judaism might in some cases require the government to allow a woman to get an abortion. Here is the example: a woman is sick because of her pregnancy, but she is not in danger of dying. She is, however, becoming increasingly depressed because of the physical debilitation. In Jewish law, the raw material inside a woman's uterus is not a person until a designated stage of labor. Therefore, if a woman is sick and depressed because she is pregnant, she may have a religious obligation to terminate her pregnancy. With a robust protection of the free exercise of religion, couldn't this Jewish woman and her doctor obtain an exemption from a law prohibiting abortion?
My prediction is no. Am I saying that she should not receive an exemption? Of course not. I believe it is an Establishment Clause violation as well as a violation of any coherent notion of bodily autonomy to force a woman to be pregnant and give birth against her will. But the five devout Justices are so mired in their own narrow version of their particular religious faith that they do not even realize (nor are they open to realizing) that they are inflicting that version on the population rather than neutrally protecting all practitioners of religion.
Justice Alito, for example, does not acknowledge that one requires a supernatural and magical belief system to infuse a single cell with entitlements that trump the most intimate bodily autonomy and privacy of a woman. He and his fellow club members almost certainly view zygotes as people and thus abortion as murder, end of story. Therefore, a woman who says her Judaism requires her to terminate a pregnancy is like a person who claims that his religion requires him to commit a murder. The state always will have a compelling interest in prohibiting and punishing murder, even if the murder is religiously motivated.
Similarly, people who follow religious principles that require feeding the hungry, housing the homeless, and educating children are free, the Court would say, to do all of those things as much as they like. By all means, feed the hungry! But you cannot impose your religious faith on other people, the Court would say, by requiring redistribution of wealth sufficient to accomplish the above goals. Your interpretation of Christianity and Judaism here would give you the right to donate and fund charity without governmental interference, and that is all. You cannot force others to also donate by more heavily taxing the rich.
Wait, though!, the progressives might say. The Court has interpreted the Free Exercise Clause in a manner that effectively allows religious people to exercise coercion over nonreligious people. In Philadelphia v. Fulton, for example, the Court said that a Catholic charity that contracts with the city of Philadelphia to screen potential foster parents had a First Amendment right to refuse to screen same sex couples to qualify them to be foster parents. The Court said that screening the same sex couples would violate the organization's religion. But that means that their religion requires them not only to be heterosexual but to stigmatize and penalize other people who aren't heterosexual. Because the contract provides for the possibility of an exception to its anti-discrimination rule, there must also be an exception for religion, even when the religious exercise essentially involves forcing someone else to practice your religion. I have an article coming out in the North Carolina Civil Rights Law Review called Free Exercise in the Mirror, and the article underscores the degree to which the existing (and further evolving) Free Exercise jurisprudence fails any test of reciprocity.
If a liberal religion asks for very little, the Court might grant the request under the Free Exercise clause. But the robust right to force other people to do things that your religion requires belongs only to people like them. In the name of religion, then, Cathy may perform a government function like qualifying foster parents, and she may send away any same sex couples because Cathy's religion opposes same sex coupling. And in the name of religion, Eva may insist on using public school vouchers--money for which comes from lots of people who think Eva's religion is irrational and profoundly immoral--to send her children to religious schools that teach intolerance toward most of the people funding the school. And best of all on the gaslighting barometer, the legislature can force women to remain pregnant and give birth against their will in the name of religious principles that most of the population (including the women) rejects but that the legislature will refer to as "scientific" or "data-based."
Yet people whose religion departs from the particular observances of the 5 can expect a very different, skeptical, contemptuous analysis from the five saints on the Court. A man named John H. Ramirez, awaiting his execution in Texas, asked to have his pastor with him, praying audibly and touching some part of the prisoner's body during the process of execution. He made claims under RLUIPA and the Free Exercise Clause. The oral argument was cringeworthy.
The most pressing concern on the Justices' minds was how, if they were to recognize the right that Ramirez claims, would they be able to prevent a whole boatload of bogus cases to come in its wake. Justice Thomas very directly suggested that the condemned man was gaming the system by making last-minute requests prior to execution. Justice Kavanaugh predicted "that'll be the next case [referring to a hypothetical], and then there will be the next case after that and the next case after that where people are moving the goalposts on their claims in order to delay executions," hastily (and not so credibly) adding at the end: "At least that's the State's concern."
Justice Kavanaugh added another point that is astonishing in the light of how he voted in a different case. He said that the government has an interest in having zero risk of error during the execution. He modified things a bit by saying that because the state had decided to allow private clerics into the execution chamber, the risk could not be zero, but it could be very close to zero. The lawyer for Ramirez pointed out that there has never been a problem attributable to the cleric at an execution. Justice Kavanaugh insisted that having an outside cleric introduces risk, the data be damned, because the data concern in-house state clerics all of whom were Christian.
I found it surprising that Justice Kavanaugh was so concerned about risk, given his eagerness to enable Christians outside of prison to spread their COVID germs every Sunday at church. In Roman Catholic Diocese of Brooklyn v. Cuomo, a shadow docket decision for which the Court offered no opinion or other justification, the Court invalidated an executive order that would have limited attendance at church to help prevent the spread of COVID. In Tandon v. Newsome, another shadow docket case, the Court enjoined a California regulation that had the effect of preventing more than three households to gather for Bible Study or prayer in a private home. Though the government in each of these cases explained why prayer and Bible study gatherings were more risky than, say, the purchase of alcohol or a haircut, the Court was unmoved by the patent riskiness of people singing and talking for hours in a crowded indoor setting. And Justice Kavanaugh, well, you can guess how he voted.
And while Justice Thomas was very concerned about assessing the sincerity of death row inmates seeking religious support in their last moments, he expressed no skepticism at all about whether the Catholic Charities truly believed it would be a sin to assess potential foster parents along a list of qualifying characteristics. I, for one, am very skeptical of the claim. I do not think Catholicism requires people to refuse government services to people who violate Catholic doctrine. And I suspect that if Catholic doctrine took this position on interracial marriage rather than same sex marriage, the agency would have (rightly) been ashamed to assert a free exercise right to refuse service to an interracial couple. A religious right to stonewall anyone who does not share your religion is little more than legal muscle flexing, and it is unbecoming of any Supreme Court, let alone one with as little moral authority as this Court has.
Imagine for a moment what it would look like to have the right to force other people to obey your minority religion in the way that people like "the five" have now enabled their coreligionists to do to those who see no appeal in religious life. You could perhaps compel the funding of political speech to compete with that of a wealth-backed candidate. You could compel, as a matter of First Amendment right, the education of children about what happens to animals at a slaughterhouse to produce the "food" that their parents give them. You could work for the government in screening foster parent applicants and turn away any applicant that wears gold jewelry or that lacks a long beard, claiming that your religion regards people wearing gold or lacking a beard as unfit parents. Or you could simply turn away all devout Catholics because your religion regards Catholicism as idol worship and as a belief in three gods instead of the One.
You might like some of what you see above and dislike others of it. But in all cases, an individual is claiming a religious right to penalize, stigmatize, or otherwise exclude someone for failing to practice that individual's religion. The Supreme Court is not about to approve that claim of right except where it overlaps completely or substantially with their own religion, which they view simply as religion. Indeed, it is hard to imagine a jurisprudence in which every religion gets to force everyone else to abide by that religion. No one is going to protect the right of a baker to refuse to bake cakes for interracial weddings, even if the religious belief in anti-miscegenation is sincerely held. And when a Catholic couple is unable to foster a child because the Jewish charity that screens applicants rejects Catholics as idol worshippers, the 5 might suddenly discover that the agency really should not be discriminating in that way--against devout Catholics--in the name of religion.
Everyone sees the world from their own perspective, of course. But the 5 take this shortcoming of human empathy to a new level. They take their own religion as the primary religion under which people may exclude, refuse service to, or stigmatize others. If local law prohibits such discrimination, then local law violates the First Amendment. And they rest on their own religion without even acknowledging it to impose what is to virtually all secular adults an absurd claim that an individual cell is a baby, a make-believe baby whose right to become an actual baby entitles the government to inflict an extended and intense physiological and emotional invasion on a woman's most private areas. There are no silver linings here.