Whoever President Biden picks to replace Stephen Breyer on the Supreme Court will have to prepare herself for being on the losing side of a lot of cases for the foreseeable future. With conservatives holding the majority of seats on the Court, John Roberts and (heaven help us) Brett Kavanaugh now are looked on as relative moderates compared to Amy Coney Barrett and Clarence Thomas.
One of those battles will be over religious liberty. The Court has been dancing around the issue for several sessions now, mostly issuing very narrow rulings, most notably in the Masterpiece Cakeshop ruling in 2019.
The Court stuck to a narrow issue in that decision, regarding the process by which the Colorado Human Rights Commission had ruled against a baker who had refused to make a wedding cake for a same-sex couple on the grounds that it violated his religious beliefs.
The religious liberty argument is almost always framed as a LGBTQ issue, largely because of the parade of homophobic bakers and florists who complain about their rights being violated when they defy local nondiscrimination laws to deny services to same-sex couples. It sometimes gets framed as a health care issue, around access to contraceptive care, as was the issue in the Hobby Lobby case.
In fact, there is hardly anything that the religious liberty argument doesn’t touch these days. The “sincerely held belief” shield that the religious right likes to wave can apply to virtually anything and anyone.
The best example of that is on display in Tennessee, where a Christian adoption agency is being sued for refusing to let a couple adopt a child.
The couple isn’t gay or lesbian — they are Jewish — but the agency says that it is “committed to Christian biblical principles” and only “places children with families that agree with our statement of faith.” Tennessee has a law that allows state-funded agencies to refuse any action that ‘would violate the agency’s written religious or moral convictions or policies.”
Shockingly, the Supreme Court has given a kind of green light to this very approach. Last year the Court ruled unanimously that the city of Philadelphia could not refuse to contract with a Catholic agency for foster care services although the agency violates the city’s LGBTQ nondiscrimination protections.
So far the Court has fashioned fairly narrow rulings, designed to chip away at nondiscrimination laws without blowing them up altogether. But it’s not hard to see the conservative wing of the Court finally foregoing that discretion and going full-on, hard-core right-wing. The justices have already signaled as much in the case of two Christian schools in Maine they heard last month.
In rural areas of the state, Maine will pay parents to send their students to private schools, but not religious ones. Two parents sued the state, seeking funding to send their children there. The two schools in question are, in the words of Justice Elena Kagan, “proudly discriminatory” when it comes to LGBTQ students.
That doesn’t bother the conservative Justices at all. They think taxpayer dollars are well spent educating students in anti-LGBTQ rhetoric, and this could be a case of the state actually subsidizing a religious belief that violates the state’s human rights law.
That’s okay with the justices, because they are so focused on LGBTQ rights. The problem is that some religious convictions that they are granting immunity to may not be, by societal standards, all that moral. Some fringe believers think that the Catholic Church is the Whore of Babylon. Others believe that interracial marriages are an offense before God or that women shouldn’t work. Many believe that non-believers are heading straight to hell. Where does the line end?
In fact, it’s impossible to say. The conservative majority clearly believes that LGBTQ people don’t deserve protections and that conservative Christians should be able to circumvent any laws that provide such protections.
But in granting that right, the justices will be opening the door to a whole range of other discriminatory behavior. Maybe they don’t care, because it’s behavior by people they favor against everyone else — but that wouldn’t be the mark of jurists.
That would be the mark of ideologues.