Some Thoughts On Our Religious Liberty

Yesterday Andrew McCarthy posted an article at The National Review about a recent Supreme Court decision. The title of the article is, “It wasn’t just religious liberty that Chief Justice Roberts strangled.” The article is detailed and complex, so I suggest that you follow the link to read the entire article. However, there are a few things I want to point out that I think are very significant.

The article notes:

Most startling was that Chief Justice John Roberts not only joined the court’s four left-leaning justices (Ruth Bader Ginsburg, Stephen Breyer, Sonia Sotomayor, Elena Kagan) in declining to uphold religious liberty. Roberts also wrote a brief opinion explaining his decision. 

That opinion is an eye-opener. Roberts accords the right to worship no deference by virtue of its being a fundamental liberty expressly protected by the First Amendment. We are to see it as an activity like any other activity, commercial or social, the pros and cons of which technocrats must weigh in fashioning regulations. The opinion, moreover, champions the power of government officials to dictate to the people who elect them without “second-guessing by an unelected federal judiciary” — exactly the power that the Bill of Rights, and the incorporation jurisprudence by which the court has applied much of it to the states, are meant to deny.

The article also points out:

In rejecting the religious liberty claim, Roberts counters that it is not a matter of unlawful discrimination if different things are regulated in different ways. Religious gatherings, he rationalized, are being restricted like gatherings that are physically similar, such as lectures, concerts, theater productions and spectator sports. He conceded that less intense restrictions have been imposed on other activities, such as shopping, banking and laundering. But that, he insists, is because of salient differences in the way they are conducted: small groups, no extended proximity, and so on.

But wait a second. What about the constitutional pedigree of religious exercise? That was the point pressed by Justice Brett Kavanaugh, in a brief dissent joined by Justices Clarence Thomas and Neil Gorsuch. (Justice Samuel Alito also opposed the denial of First Amendment relief but did not join Kavanaugh’s dissenting opinion.)

The article concludes:

There is no recognition, in Roberts’ rendering, that there is another side to this equation — a side where 400 times the number of people who’ve died have lost their jobs, millions of them facing ruin. The stubborn message: Don’t expect the court to help you, you’re the ones who elected these people; if you don’t like what they do, un-elect them. If you’ve elected social engineers who say the Bill of Rights is above their pay grade, that’s your problem.

The justices are happy to order that abortion must be available, to decide which couples (or perhaps throuples) must be permitted to marry, and to dictate what’s ever next in the ceaseless march of progressive, organic “liberty.” But as for the liberties that are actually in the Constitution, we are on our own.

Unfortunately Justice Roberts has been something of a disappointment to those of us who expected him to be a responsible judge who would uphold the Constitution. He has wandered away from the constitutional role of the judiciary more than once.

Recent Quotes From The Supreme Court

There have been some major cases decided by the Supreme Court in recent days. Paul Mirengoff has posted a number of quotes from the Justices in recent blog articles (here and here). The quotes have to do with the Housing Authority Case and the Gay Marriage Case. In each case, Mr. Mirengoff states that he feels that the Justices were not fully aware of the unintended consequences of their rulings.

In Texas Department of Housing and Community Affairs v. The Inclusive Communities Project, Mr. Mirengoff points out that both sides of the ruling were aware of the possible consequences.

Justice Alito stated:

No one wants to live in a rat’s nest. Yet in Gallagher v. Magner, 619 F. 3d 823 (2010), a case that we agreed to review several Terms ago, the Eighth Circuit held that the Fair Housing Act (or FHA) could
be used to attack St. Paul, Minnesota’s efforts to combat “rodent infestation” and other violations of the city’s housing code. The court agreed that there was no basis to “infer discriminatory intent” on the part of St. Paul.

Even so, it concluded that the city’s “aggressive enforcement of the Housing Code” was actionable
because making landlords respond to “rodent infestation, missing dead-bolt locks, inadequate sanitation facilities, inadequate heat, inoperable smoke detectors, broken or missing doors,” and the like increased the price of rent. Since minorities were statistically more likely to fall into “the bottom bracket for household adjusted median family income,” they were disproportionately affected by those rent increases, i.e., there was a “disparate impact.” Id., at 834.

The upshot was that even St. Paul’s good-faith attempt to ensure minimally acceptable housing for its poorest residents could not ward off a disparate impact lawsuit.

Today, the Court embraces the same theory that drove the decision in Magner. This is a serious mistake. The Fair Housing Act does not create disparate-impact liability, nor do this Court’s precedents. And today’s decision will have unfortunate consequences for local government,
private enterprise, and those living in poverty. Something has gone badly awry when a city can’t even make slumlords kill rats without fear of a lawsuit.

Makes sense.

Justice Kennedy also saw the risk in the decision:

Without adequate safeguards at the prima facie stage, disparate-impact liability might cause race to be used and considered in a pervasive way and “would almost inexorably lead” governmental or
private entities to use “numerical quotas,” and serious constitutional questions then could arise.

The litigation at issue here provides an example. From the standpoint of determining advantage or disadvantage to racial minorities, it seems difficult to say as a general matter that a decision to build low-income housing in a blighted inner-city neighborhood instead of a suburb is discriminatory, or vice versa.

If those sorts of judgments are subject to challenge without adequate safeguards, then there is a danger that potential defendants may adopt racial quotas—a circumstance that itself raises serious constitutional concerns.

Somehow we have substituted the concept of equal outcome for equal rights.

In the gay marriage decision, there are serious questions as to whether the rights of Bible-believing Christians will be abandoned in favor of the new definition of marriage.

Justice Kennedy writes:

Finally, it must be emphasized that religions, and those who adhere to religious doctrines, may continue to advocate with utmost, sincere conviction that, by divine precepts, same-sex marriage should not be condoned. The First Amendment ensures that religious organizations and persons are given proper protection as they seek to teach the principles that are so fulfilling and so central to their lives and faiths, and to their own deep aspirations to continue the family structure they have long revered. The same is true of those who oppose same-sex marriage for other reasons.

Justice Roberts wrote:

The majority graciously suggests that religious believers may continue to “advocate” and “teach” their views of marriage. The First Amendment guarantees, however, the freedom to “exercise” religion. Ominously, that is not a word the majority uses.

Hard questions arise when people of faith exercise religion in ways that may be seen to conflict with the new right to same-sex marriage—when, for example, a religious college provides married student housing only to opposite-sex married couples, or a religious adoption agency declines to place children with same-sex married couples. Indeed, the Solicitor General candidly acknowledged that the tax exemptions of some religious institutions would be in question if they opposed same-sex marriage.

There is little doubt that these and similar questions will soon be before this Court. Unfortunately, people of faith can take no comfort in the treatment they receive from the majority today.

The First Amendment of the U.S. Constitution states:

Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof; or abridging the freedom of speech, or of the press; or the right of the people peaceably to assemble, and to petition the government for a redress of grievances.

It is my belief that in the future, when people who hold a Biblical view of marriage attempt to freely exercise their religion in the public square or their place of business, that freedom is going to be taken away from them, particularly in the area of a Biblical view of marriage. This happened in Massachusetts after the courts ruled that gay marriage was legal–the Catholic adoption agencies were forced to close down because adopting a child to a same-sex couple was against their religious belief. We may see that happen all over the country as a result of this ruling. I hope I am wrong, but I don’t think I am.