We have reached the point where the US Supreme Court has become one of the greatest threats to public health and welfare in this country. At a moment when many thousands of people are falling ill every day with Covid and state legislatures are taunting the Supreme Court by passing hundreds of laws that blatantly violate long-recognized constitutional rights relating to gun safety, reproductive rights, and voting, the court’s conservative justices insist that the most pressing constitutional emergency today is a conjured threat to religious liberty.
In a series of recent cases, the new conservative majority has accomplished a radical realignment in the way fundamental rights are recognized and enforced. The significance of this revolution cannot be overemphasized. Unlike previous decisions that shrunk the scope of equal rights, the court has now ruled that some rights are first-tier rights (religious liberty, gun rights, and property rights), while all others (such as public health, reproductive health, race/sex/LGBTQ equality) enjoy a lower constitutional status. It will protect the rights of LGBTQ people as long as they don’t conflict with another person’s religious liberty. That’s how we won the marriage equality case, but lost the case challenging Catholic Social Services’ claim that it had a First Amendment right to discriminate against LGBTQ people when paid by the City of Philadelphia to vet couples to serve as foster parents.
It gets worse. When the governors of California and New York scrambled to implement limits on public gatherings early in the pandemic, religious groups resisted, saying their right to pray together supersedes the public interest in controlling the virus’s spread. Here too the religious objectors 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 honed a new, radical approach to religious liberty—if a law contains any secular exceptions, it must allow religious exemptions; otherwise it discriminates against religion. Thus, if the state imposes widespread limits on public gatherings, including religious gatherings, yet allows people to go to a pharmacy or grocery store, this amounts to discrimination against religion. Never mind that popping into Walgreens for medication poses a much lower risk of contagion than sitting in a pew for hours singing.
Justice Neil Gorsuch wants to go even further. In addressing vaccine mandates that include medical, but not religious, exemptions, he suggests that one way to assure that faith-based objectors aren’t discriminated against would be “to restrict vaccine exemptions to a particular number divided in a nondiscriminatory manner between medical and religious objectors.” In other words, Justice Gorsuch thinks the First Amendment may require the forcible vaccination of people with severe allergies to the vaccine in order to make room for those with religious objections. This jettisons a fundamental principle of the First Amendment: that the protection of one person’s religious beliefs can’t be accomplished at the expense of another person’s rights or safety. As Thomas Jefferson put it, “It does me no injury for my neighbour to say there are twenty gods, or no god. It neither picks my pocket nor breaks my leg.”
The second-tier status of rights many Americans consider fundamental was underscored by the court’s approach to Texas’s six-week abortion ban, a clear violation of Roe v. Wade. Unpersuaded that the law posed any imminent threat to fundamental constitutional rights, the Supreme Court ruled that the law should go into effect while it makes its way through the federal courts. No constitutional emergency here, though access to abortion is fundamentally a public health issue.
The weaponization of religious liberty is not limited to the domains of sex, sexuality, and public health, and we find no limiting principle in the court’s rulings. Religious liberty claims have been used by employers to override workers’ rights to unionize, a minimum wage, and equal pay, and to avoid laws banning child labor and sexual harassment. So too religious liberty has been used to challenge laws regulating divorce, domestic violence, child welfare, sexual assault, and child pornography.
Starting in the Reagan era, the sphere of public values and morality—equality, health, education, and human dignity—has withered when compared with the exploding domain of private religious morality. Tragically, today’s Supreme Court is baking this fact into the Constitution.