Christian nationalists are dropping a gigantic nuclear bomb on democracy and secular law

Fear the the radical Christian 

nationalist Supreme Court

This true horror story will curdle your blood, milk and cottage cheese. It will also dry your laundry, and burn your house and country to the ground. 

The bottom line is that Christian nationalists on the Supreme Court, led by the hyper-radical fundamentalist Sam Alito, want to exempt all religious people and organizations from essentially all legal obligations that now exist for everyone. The reason for exempting the religious crowd is to block burdens on their freedom of religion that Christians claim unduly burdens their religious beliefs and practice. The sleight of hand the Christian nationalists use for a “rationale” is that if one can imagine the possibility of a hypothetical, nonexistent government program that could substitute for the legal obligation, e.g., to provide birth control to employees by a Christian employer who sees contraception as offensive to his Christianity, then the Christians can opt-out of laws they dislike. 

Obviously, with Republicans in congress able and happy to block essentially all expansions of all government domestic spending programs, the government could not step in and provide the obligation that Christianity denies them, e.g., birth control. In essence, Christians would be free to discriminate almost as much as they wanted against whoever they choose, with no government protection for those discriminated against.

What Christian nationalists want is almost absolute freedom of religion (specifically Christianity) from almost all laws and obligations that any Christian (real or fake) says offends their beliefs. In the hyper-radical Christian fundamentalist world, it may even be the case that Christian nationalists will eventually demand exemptions from criminal laws that offend their religious sensibilities. For example, one can envision an argument that because God is OK with it, they can legally engage in insider stock trading that would amount to a felony for the rest of us. 

I do not know how far this horror show could go, but I strongly suspect it is a lot farther than even mindlessly blabbermouth Christian nationalists would be willing to admit in public. In essence, Christian nationalists are elevating religious freedom above all other rights, making the law religious and Christianity the core of theocratic law. 

The Hill writes in an opinion piece by Andrew Koppelman, John Paul Stevens Professor of Law at Northwestern University:

Religion and Samuel Alito’s time bomb

An irresponsible sentence that Justice Samuel Alito wrote eight years ago may now excuse religious people from nearly every legal obligation they have, so long as a hypothetical, nonexistent government program could substitute for it.

That became clear this week when Judge Reed O’Connor declared in Braidwood Management v. Becerra that employers with religious objections may offer health plans without drugs that prevent transmission of HIV, contraception, the HPV vaccine and screenings and behavioral counseling for STDs and drug use. The employers claim that providing such coverage makes them complicit in homosexual behavior, drug use and sexual activity outside of marriage.

The plaintiffs obviously were shopping for a favorable judge when they brought their case to O’Connor, who has repeatedly stretched the law in ways that disrupt ObamaCare. Here, however, his extravagant conclusion may well be sustained by the Supreme Court, which has embraced an increasingly extreme account of religious liberty.

[In a 2014 Supreme Court decision, Burwell v. Hobby Lobby Stores] opinion [Alito] mused that the “most straightforward way” of providing coverage “would be for the Government to assume the cost of providing the four contraceptives at issue to any women who are unable to obtain them under their health-insurance policies due to their employers’ religious objections.” He rejected the Obama administration’s claim that “RFRA cannot be used to require creation of entirely new programs.”

The court [in Hobby Lobby] split 5-4, and the swing vote, Justice Anthony Kennedy, declared that he was skeptical about the “imposition of a whole new program or burden on the Government.” In Hobby Lobby, he declared, there happened to be “an existing, recognized, workable, and already-implemented framework” for accommodating the religious objection. This fact “might well suffice to distinguish the instant cases from many others in which it is more difficult and expensive to accommodate a governmental program to countless religious claims based on an alleged statutory right of free exercise.”  

Kennedy has since retired, replaced by Neil Gorsuch, who has never voted to deny any religiously based claim. He is willing to expose frail patients to COVID-19 for the sake of religious liberty. Alito now proposes, on the basis of weak originalist evidence, to constitutionalize RFRA and require religious exemptions for all laws, state and federal alike.

Alito’s dictum was the basis for Judge O’Connor’s decision last week. Quoting “Hobby Lobby,” O’Connor wrote that the Biden administration had not “shown that the government would be unable to assume the cost of providing [HIV preventive] drugs to those who are unable to obtain them due to their employers’ religious objections.”

And that was that. With this one sentence, the employees’ coverage disappeared. Gone are Kennedy’s concerns about the difficulty and expense of demanding entire new programs. Or the certainty that those programs will not in fact ever be enacted, so that the employees must simply do without. And a majority of the new, extremely conservative court appears likely to agree with Alito.  

[In her dissent in Hobby Lobby, Justice Ruth Bader] Ginsburg was right that there is no stopping point. Perhaps emergency rooms in religious hospitals can turn away women hemorrhaging from failed pregnancies, because government could always build emergency rooms of its own.

There is today a serious danger to religious liberty. But it is coming from the Supreme Court, which has been construing it to mean a right to hurt people. If this is now its authoritative meaning, then the longstanding, broad consensus that supported it will collapse.

Professor Koppelman’s bland assertion that “the longstanding, broad consensus that supported it will collapse” is a gross understatement. Democracy and pluralistic secular law will both collapse if hyper-extremist Alito and Christian nationalists get their way. Democracy and secular law will be replaced by bigoted Christian fundamentalist theocracy backed by cruel, aggressive, vengeful Christian Sharia law. 

This is how threatening and aggressive American Christian nationalism and our Christian nationalist Supreme Court are toward democracy and pluralistic secularism. Short of a modern version of full blown civil war, our situation can’t get much worse than this.