Religious Right Collects Its Payoff at Supreme Court

      The religious conservatives who traded their integrity for Supreme Court seats collected their payoff this term in the form of three decisions favoring their distorted vision of religious liberties. It was a Faustian bargain from the onset to support a presidential candidate who mocks Christian values on a daily basis but who promised to appoint judges and justices who would bow down to the evangelicals’ golden calf.

      The evangelicals traded away their integrity a second time when they provided critical support to Brett Kavanaugh’s confirmation as President Trump’s second Supreme Court justice after he was plausibly accused of attempted rape as a privileged teenager. With Kavanaugh anchoring the Court’s conservative majority, the Court engaged in a burst of judicial activism in the last few weeks to give religious schools and religious employers special rights to disobey validly enacted laws that the rest of use are obliged to follow.

      The trifecta of decisions belie the conservatives’ complaint that the Roberts Court has gone rogue with a few liberal decisions favoring LGBT rights and abortion rights and blocking Trump’s effort to rescind protections for “dreamers.” The back-and-forth debate about those decisions dominated the blogosphere even as the justices were drafting the end-of-term opinions giving the religious right almost everything it could have expected.

      Religious conservatives had weighed in with amicus briefs in all three cases. They kept their eyes on the prize even as most Court watchers were preoccupied with the Trump subpoena cases. In the first of the three decisions, the Court gave a windfall to private religious schools by overriding constitutional provisions in thirty-eight states that prohibit public funding of sectarian schools. The 5-4 decision in Espinoza v. Montana Department of Revenue [June 30] overrode the Granite State’s “no-aid” provision by holding, under the Free Exercise Clause, that the state’s scholarship program for private school students had to include religious schools.

      In his opinion for the Court, Roberts gave no weight to the state’s interest in avoiding entanglement with religion at the risk of Establishment Clause issues. The ruling cheered school choice advocates intent on keeping religious conservatives in their camp and conversely alarmed public school advocates fearful of further defunding of financially struggling public schools.

      A week later, the Court gave religious schools another windfall: a get-out-of-jail-free card in the form of a decision that largely exempts them from federal job discrimination laws. The 7-2 decision in Our Lady of Guadalupe School v. Morrissey-Berru [July 8] allowed two Catholic schools in the Los Angeles area to get out of federal court lawsuits filed by former teachers who said they were fired in violation of federal civil rights laws.

      One of the teachers claimed the school replaced her with a younger teacher in violation of the Age Discrimination in Employment Act; the other teacher claimed that her school let her go in violation of the Americans With Disabilities Act after she asked for medical leave to pursue treatment for breast cancer. Both schools cited deficient performance by the teachers, but rather than defend the suits in court they asked for immunity under a recent Supreme Court decision giving religious schools a “ministerial exception” for teachers in religion classes.

      The new decision expands that exception to include almost anyone that a religious school identifies as having a minister-like role at the school: athletic coaches, probably, and maybe even custodians. In her dissent, Sotomayor correctly said that the decision denies federal civil rights protection to “countless” numbers of religious school employees nationwide.

      The decision flagrantly disregards Jesus’s teaching on the relationship between religion and state, as quoted in Matthew 22:21: “Render to Caesar the things that are Caesar’s and to God the things that are God’s.” In his letter to the Romans, Paul similarly stressed that Christians enjoyed no superior rights to disregard the law. “Let every person be subject to the governing authorities,” Paul wrote in Romans 13:1.

     In the third of the decisions, the Court returned to the attack by religious conservatives on the Obamacare mandate that employers provide coverage for contraceptives in employee health benefits plans. The 7-2 ruling in Little Sisters of the Poor v. Pennsylvania expanded the exemption already created for private employers with religious objections to the mandate. In the new decision, the Court upheld a Trump administration regulation expanding the exemption to employers with either religious or moral objections to including contraceptives in their health benefit plans.

      All told, the decisions bear out the observation by the New York Times’ semi-retired Supreme Court correspondent Linda Greenhouse that Roberts is on a “mission” to rewrite religious liberty jurisprudence. The decisions, Greenhouse wrote in a recent article [July 16], amount to “insisting on organized religion’s entitlement to public benefits as a matter of equal treatment while at the same time according religion special treatment in the form of relief from the regulations that everyone else must live by. Benefits without burdens, equal treatment morphing into special treatment.”

      True, religious conservatives suffered a defeat in the ruling to extend Title VII to LGBT employees (Bostock v. Clayton County). In writing the opinion, however, Gorsuch made clear that employers with religious objections to hiring LGBT individuals are welcome to come back and claim a religious liberty to discriminate. Those claims are likely to find a receptive audience among the Roberts Court majority, in open mockery of the Court’s carved-in-marble motto: “Equal Justice Under Law.”