We have reached the point where the US Supreme Court has become one of the greatest threats to the public health and welfare of this country. At a moment when many thousands of people develop Covid every day and state lawmakers are mocking the Supreme Court by enacting hundreds of laws that blatantly violate long-recognized constitutional rights to gun safety, reproductive rights and elections, this is Court Conservative judges insist that the most pressing constitutional emergency today is an invoked threat to religious freedom.
The new conservative majority has recently carried out a radical realignment in the recognition and enforcement of fundamental rights in a number of cases. The importance of this revolution cannot be emphasized enough. In contrast to previous rulings that restricted the scope of equality, the court has now ruled that some rights are first rights (freedom of religion, gun rights and property rights) while all others (such as public health, reproductive health, race / gender / LGBTQ) ) enjoy a lower constitutional status. It protects the rights of LGBTQ people as long as they don’t conflict with another person’s religious freedom. In this way, we won the marriage equality case, but lost the case in which we challenged the Catholic Social Service’s assertion that it had a First Amendment right to discriminate against LGBTQ people if they were affected by the City of Philadelphia paid to screen couples serving as foster parents.
It gets worse. When the governors of California and New York scrambled to introduce restrictions on public gatherings at the beginning of the pandemic, religious groups resisted, saying their right to pray together translated the public interest in controlling the spread of the virus. Here, too, the refusers of religion found favor with the court: the right to pray unmasked and in person was protected even during a global health crisis. In these cases, the court refined a new, radical approach to religious freedom – if a law contains secular exceptions, it must allow religious exceptions; otherwise it discriminates against religion. When the state largely restricts public gatherings, including religious gatherings, but allows people to go to a pharmacy or grocery store, it amounts to discrimination against religion. Never mind that a visit to Walgreens for medication is a much lower risk of contagion than sitting in a pew for hours and singing.
Judge Neil Gorsuch wants to go further. Regarding vaccination regulations that include medical but non-religious exemptions, he suggests that one way to ensure religious objectors are not discriminated against is to “limit vaccination-free exemptions to a certain number that are non-discriminatory in medical and religious objectors. ”In other words, Judge Gorsuch believes the First Amendment could mandate the compulsory vaccination of people with severe allergies to the vaccine, to make way for those with religious objections. This throws overboard a fundamental principle of the First Amendment: that protection of one person’s religious beliefs cannot come at the expense of another person’s rights or safety. As Thomas Jefferson put it, “I don’t hurt when my neighbor says there are twenty or no gods. It neither steals my pocket nor breaks my leg. ”
The secondary status of rights that many Americans consider fundamental was underscored by the court’s stance on Texas’ six-week abortion ban, a clear violation of that Roe versus Wade. Undeterred that the law posed an imminent threat to constitutional rights, the Supreme Court ruled that the law should go into effect while it was progressing through federal courts. Not a constitutional emergency here, although access to abortion is fundamentally a public health issue.
The arming of religious freedom is not limited to sex, sexuality and public health, and we do not find a restrictive principle in the judgments of the court. Religious liberties have been used by employers to override workers’ rights to unionize, a minimum wage and equal pay, and to avoid laws prohibiting child labor and sexual harassment. Religious freedom has also been used to challenge laws regulating divorce, domestic violence, child welfare, sexual assault, and child pornography.
Since the Reagan era, the realm of public values and morals – equality, health, education, and human dignity – has withered in comparison to the exploding realm of private religious morality. Tragically, the Supreme Court is writing that fact into the Constitution today.
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