First Amendment: 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.
The Free Exercise Clause . . . withdraws from legislative power, state and federal, the exertion of any restraint on the free exercise of religion. Its purpose is to secure religious liberty in the individual by prohibiting any invasions there by civil authority. -- US Supreme Court,
Abington School District v. Schempp, 374 US 203, 222-223, 1963
Context
1. In coming decades, the ideology of Christian Nationalism (CN) will be heavily brought to bear on Americans and American society, governance and law. The contours of the legal strategy are visible and have been for at least 30 years or so. One part of the CN strategy is to change interpretation of the equal protection clause from a shield to protect religious freedom and practices, to a sword to aggressively expand the legal scope, power and influence of Christianity into commerce and secular affairs generally.
2. One the most difficult concepts in politics to grasp is how to reconcile conflicts between conflicting rights. A recent example is the 2015 Supreme Court decision that legalized same-sex marriage. Conservatives vehemently objected and argued that the new rights of same-sex couples would crush religions freedom and practice into oblivion. My own analyses of the freedoms conflicts and burdens indicated that such fears were grossly exaggerated in almost all situations for most people (
private speech and practice analysis;
speech and practice in commerce analysis).
3. One of the most difficult endeavors in law is how to interpret the often ambiguous US Constitution. The Constitution was built on compromises that forced ambiguities into the document to get it agreed on and accepted. The Founders were in bitter disagreement and they never resolved critical disagreements in their lifetimes. The ambiguity affords a legal basis to reshape American government and society by reinterpreting law as radical right CN sees it must be in the eyes of sacred God. One goal that CN wants is to legally demolish is the concept of a separation of church from state. Another is to extend the reach of religion deep into secular affairs, which is the topic of this OP.
Shield to Sword
A Sept. 18, 2020 article in
The Atlantic by legal scholars Howard Gillman and Erwin Chemerinsky describes how the radical right Supreme Court is weaponizing the equal protection clause. Among other things, the point is to reverse civil rights gains that some groups have gained over the years.
Gillman and Chemerinsky write:
The Supreme Court’s conservative majority is in the process of transforming this First Amendment clause [Free Exercise] into a sword that politically powerful Christian conservatives can use to strike down hard-fought advances in civil rights, especially for LGBTQ individuals and women.
At issue is whether religious believers who object to laws governing matters such as health care, labor protections, and antidiscrimination in public accommodations should have a right to an “exemption” from having to obey those laws. .... Religious business owners, such as bakers and florists, who object to same-sex marriage have claimed a right to refuse service to same-sex couples. And employers have successfully asserted a right to deny their workers health-care benefits that they would otherwise be entitled to, such as contraception or abortion counseling.
Providing such religious exemptions has required a dramatic change in the law by the Supreme Court. In 1990, in Employment Division v. Smith, the Supreme Court held that the free-exercise clause of the First Amendment cannot be used as a basis for an exception to a general law, no matter how great the burden on religion, unless the government’s action can be shown to be based on animus to religion. The case involved a claim by Native Americans for a religious exception to an Oregon law prohibiting consumption of peyote.
Justice Antonin Scalia wrote the opinion for the Court ruling against the Native Americans and explained that it would be impossible to provide religious exemptions from civic obligations whenever a person disagreed with the law—there are just too many civic obligations and too many different religious views about those obligations. Also, if the government were to begin down this path, it inevitably would face the impossible task of defining a “religious” belief. Such an approach would force the Court to make intrinsically controversial and discriminatory decisions about which religious views were most deserving of special accommodation and which social values should be considered less important than the favored religious views.
This decision was in line with the approach taken by the Supreme Court, in almost all cases, through American history. Courts long held that the Constitution did not require an exception to general laws on account of religious beliefs—that parents could not deny medical aid to their children, ....
Unfortunately, the conservative justices on the current Court reject Scalia’s reasoning and may be about to overrule
Employment Division v. Smith.
If they do so, the Supreme Court’s conservative majority will in essence be saying that the views of Christian conservatives are more important than legal protections for workers and people who seek to engage in ordinary commercial activity without suffering discrimination.
The first sign of this shift came with the 2014 decision in Burwell v. Hobby Lobby, when for the first time in American history, the Court held that the religious beliefs of a business’s owner allowed it to refuse to provide employees with a benefit required by law. .... at issue in Hobby Lobby were the rights of the owners of a purely secular business. The five conservative justices held that a family-owned corporation could deny contraceptive coverage to women employees based on the business owners’ religious beliefs.
In June 2020, the Court ruled in Our Lady of Guadalupe School v. Morrissey Berru that teachers at a Catholic school could not sue for employment discrimination. The two cases before the Court involved a teacher who had sued for disability discrimination after losing her job following a breast-cancer diagnosis and a teacher who had sued for age discrimination after being replaced by a younger instructor.
Previously, in Hosanna-Tabor Lutheran Evangelical Lutheran Church and School v. EEOC (2012), the Court said that a narrow exception protects religious organizations from being held liable for choices they make about their “ministers,” which traditionally have been considered “exclusively ecclesiastical questions” that the government should not second-guess. But now the Court has expanded that exception to all religious-school teachers, meaning that the schools can discriminate based on race, sex, religion, sexual orientation, age, and disability with impunity.
In recent months, the Court expanded civil-rights protection for gay, lesbian, and transgender individuals, but there is reason to fear that the conservative justices are about to undercut this. In June 2020, the Supreme Court ruled that the federal law Title VII, which prohibits employment discrimination based on sex, forbids employment discrimination based on sexual orientation or gender identity. But Justice Neil Gorsuch’s majority opinion left open the possibility of giving an exception to employers who discriminate because of their religious beliefs. The Court should emphatically reject such claims. Selling goods and hiring people on the open market is not the exercise of religion, and stopping discrimination based on sexual orientation or gender identity is a compelling government interest that judges should not dismiss because members of a favored religion disagree with the policy. (emphases added)
This is what the face of aggressive Christian theocracy looks like. It is sneaking up on our secular society. Radical right political ideology coupled with CN ideology[1] are proving to be a powerful, socially toxic and highly discriminatory and bigoted political force. That is the direction the authoritarian GOP and conservatism in general want American society and law to go. And, that is where it is going whether the majority wants it or not.
Footnote:
Christian nationalism seeks to merge Christian and American identities, distorting both the Christian faith and America’s constitutional democracy. Christian nationalism demands Christianity be privileged by the State and implies that to be a good American, one must be Christian. It often overlaps with and provides cover for white supremacy and racial subjugation. We reject this damaging political ideology and invite our Christian brothers and sisters to join us in opposing this threat to our faith and to our nation.
As Christians, we are bound to Christ, not by citizenship, but by faith. We believe that:
People of all faiths and none have the right and responsibility to engage constructively in the public square.
Patriotism does not require us to minimize our religious convictions.
One’s religious affiliation, or lack thereof, should be irrelevant to one’s standing in the civic community.
Government should not prefer one religion over another or religion over nonreligion.
America’s historic commitment to religious pluralism enables faith communities to live in civic harmony with one another without sacrificing our theological convictions.
Conflating religious authority with political authority is idolatrous and often leads to oppression of minority and other marginalized groups as well as the spiritual impoverishment of religion.
We must stand up to and speak out against Christian nationalism, especially when it inspires acts of violence and intimidation—including vandalism, bomb threats, arson, hate crimes, and attacks on houses of worship—against religious communities at home and abroad.
What biblical moral principles, if any, dictate
Christian law over secular law?
