Amy Coney Barrett has now taken her seat on the Supreme Court. Thus, even if we assume that Joe Biden wins the presidency on November 3 and that the Democrats control Congress, the United States will have a Supreme Court that may be the most dangerous to civil rights since the Dred Scott court of the 1850’s, holding that African-Americans could not claim the rights of citizenship or, at the very least, the Plessy v. Ferguson court of the 1890’s, upholding “separate but equal” racial segregation.
Unless the incoming President and Congress are prepared to utilize the lever of powers aggressively within the laws, the Five Horsepersons of the New Apocalypse — Justices Barrett, Alito, Thomas, Gorsuch and Kavanaugh — will usher in years if not decades of reactionary decision-making that could transform the United States beyond recognition. While Gorsuch and Kavanaugh may have the occasional swing toward institutional moderation (and Roberts toward the right), the Barrett-Alito-Thomas troika promises to be as reliable a voting bloc as the Politburo.
Top of the agenda for these justices is to reconfigure the First Amendment with respect to religious rights, thereby subsuming the Court’s jurisprudence on a variety of contentious issues like same-sex marriage, abortion, contraception and even the rights of corporate shareholders over their employees.
The First Amendment provides that Congress shall make no law “respecting an establishment of religion” or “prohibiting the free expression thereof.” Although there is a certain tension between the two clauses, the Supreme Court has historically tried to navigate a path of neutrality, upholding most laws of general applicability and permitting individual religious practices that did not unduly burden state action. Thus, the Court has worked through, pragmatically if not consistently, some of the hard cases: compelled recitation of the Pledge of Allegiance; public displays of religious symbols and school prayer; accommodating religious practices in prisons; state support for religious schools.
Yet the Five Horsepersons have a view that, in reality, privileges religion above virtually any other Constitutional right, other than perhaps the Second Amendment right to bear arms (Judge Barrett found that it was fine to deprive ex-felons of the right to vote but not the right to purchase automatic weapons). Justice Barrett will almost certainly push this absolutist view even further.
Earlier this month, Justice Thomas, joined by Justice Alito ,wrote an opinion relating to the Court’s refusal to hear the case of Davis v. Ernold, where a county clerk in Kentucky — a government employee — refused to issue a marriage license to a gay couple because of her “sincerely held religious belief” that marriage was between one man and one woman. Her belief conflicted with the Court’s decision in the Obergfell case declaring that same-sex marriage was a Constitutional right. Justice Thomas wrote, “By choosing to privilege a novel Constitutional right over the religious liberty interests explicitly protected in the First Amendment, and by doing so undemocratically, the Court has created a problem that only it can fix.” He said ominously, “Until then, Obergefell will continue to have ‘ruinous consequences for religious liberty.”’
Of course, no one is forcing Kim Davis to enter into a same-sex marriage, or even personally endorse it; she is only being asked to do her government job according to the law. But Justice Thomas thinks that the Constitutional right to same-sex marriage is not in the text of the Constitution; the Founders did not affirm it; and therefore in his view it is not a right at all. Justice Barrett has indicated similar views and her “People of Praise” organization ejects anyone who has gay sex. She also joined a letter from the Beckett Fund, a religious organization, that called for corporations to prevent insurance coverage for contraception if it violated the shareholders’ religious beliefs. She has stated clearly her view that life begins at conception and ends at natural death (unless the state administers the death penalty first). No zone of privacy limits the state’s rights to limit abortion and Roe v Wade is not a “super-precedent.” The votes are now there to make it a nullity.
Thus, under the banner of religious freedom, the right-wing bloc views facially neutral laws as breaching religious rights, including the right of a government employee not to enforce the laws because she does not believe that gay people should marry. We can anticipate that a majority will soon find that the right to same-sex marriage was a brief, mistaken blip on the Constitutional map that the textualists will remove in the service of preventing the true “super-precedent,” the right of religious people to decline to act in accordance with laws which they disagree with on grounds of belief.
Of course, laws regarding race were also believed to be divinely inspired and interracial marriage was prohibited on deific grounds until the Supreme Court finally struck down such laws in 1967, in Loving v. Virginia, over a century after the end of the Civil War. Indeed the Virginia trial court wrote, “Almighty God created the races white, black, yellow, Malay and red, and he placed them on separate continents. And, but for the interference with his arrangement, there would be no cause for such marriage. The fact that he separated the races shows that he did not intend for the races to mix.”
After the Supreme Court invalidated bans on interracial marriage, Bob Jones University argued that freedom of religion provisions of the First Amendment allowed it to ban interracial dating because its “rule against interracial dating is a matter of religious belief and practice.” Opponents of gay marriage relied on custom and practice as well. Michigan argued that it “has defined marriage as the union of one man and one woman since before statehood.” Kentucky contended same-sex marriage was “not deeply rooted in this nation’s history.” Yet slavery was; not all roots yield healthy life.
There can be no doubt that as a matter of textualism as well, the Founders did not contemplate gay marriage or interracial marriage in the 1780’s. Nor do we need to argue that those who opposed either type of marriage are insincere when they say that they believe their ideas were divinely inspired. Just as your right to put out your fist ends where my jaw begins, your right to harbor whatever beliefs you choose in the name of religion ends at my right to exercise a life of equal dignity. The so-called “war on religion” is in reality an attempt to privilege the beliefs of one group over the beliefs (or non-beliefs) of another in the public square.
We are in a dangerous place. Having purloined two Supreme Court seats, social policy may be set for decades by a Supreme Court majority of extreme and unprecedented views. The right-wing legal establishment is savvy enough to keep the cases coming. Unless a new administration is willing to consider how to prevent what was considered “the least dangerous branch” from using an extreme view of the Constitution and a retrograde attempt to recreate the mentality of the late eighteenth century, any victory on November 3 may well by pyrrhic.
Eric Lewis is a human rights lawyer living in New York City