Have religious zealots coopted the Supreme Court? The left seems to think so.
Pieces written about its last two terms, in particular, make various versions of this claim. They’ve said the court allegedly wishes to end the separation of church and state. They’ve said the majority of justices want to give an “elevated” status to religious persons and claims, privileging them over all other principles and laws. The list goes on.
But these claims fall short — a truth we can see by a fair examination of religious cases in the past two Supreme Court terms. Rather than showing an imposition of theocracy, these decisions merely try to give religious persons equal treatment and respect constitutional religious rights.
This summer, one pundit declared that, with the current court, the First Amendment Establishment Clause’s “limits on the government’s involvement with or facilitation of religion … appear to have been smashed.” Wrong. The court has hardly decreed all government interaction with religion constitutionally permissible. Recent decisions, like last year’s Carson v. Makin, have sided with religious claims based on equality, not special privilege. This case, which concerned access to generally available educational funding, said that, once instituted, state governments must permit its use for religious and secular institutions alike.
As much as that claim misinterprets legal texts, it misrepresents the legal context. Far from being a recent shift, the Supreme Court, for 20 years, has consistently found that state governments must afford religious persons and groups the same opportunities as secular equivalents. Consider the 2002 school voucher case, Zelman v. Simmons-Harris, which said parents must be allowed to use this government funding for any private school they wished, whether religious or secular.
Progressives also have attacked the court’s protection of the football coach praying at the 50-yard line after games. The case again included the issue of equality, namely the need to treat religious uses of public employee time similar to non-religious. Neither has the court only now discovered protections for prayer by public employees or in public settings. For example, the 2014 case of Town of Greece v. Galloway affirmed prayer as constitutional when made before governmental functions such as school board meetings.
Regarding accusations of special treatment for believers, let us begin with this summer’s decision in Groff v.DeJoy. The case concerned a postal worker who asked for accommodation not to work on Sundays, as the protection afforded against religious discrimination in the Civil Rights Act of 1964. The court revisited the standard for assessing such claims in the 1977 case Hardison v. Trans World Airlines. Courts using this case had far from “balance[d] the competing values,” religious and other, in the workplace. Instead, judges had taken the case to apply a “de minimus” standard whereby the Civil Rights Act did not protect any religious accommodation that involved more than a minimal inconvenience to the employer.
This reading stacked the deck in favor of businesses and against individuals desiring an exemption. It thus relegated religious claims to second-class status behind other classes (like race or gender) that received more robust judicial protection. Therefore, rather than supporting the left’s argument, which says the court gave religious claims unique, elevated status, the court merely took the law’s language seriously. It gave employees a fighting legal chance, comparable to other legal claims, to have religious accommodations.
Or take the court’s COVID-era decisions, which the left has criticized. There, the court demanded equal — not favored — treatment for churches seeking the ability legally to worship. The court generally sided with religious groups here because others had received special treatment permitting exemptions, not them.
Though many of these cases concern equal treatment, we should not concede to the left that religion gets no special legal status. The Constitution has enshrined protections for religious liberty, most famously in the First Amendment. Landmark legislation like the Civil Rights Act of 1964 did the same. Religion is not the only protected liberty. But looking at our Founding shows how our Framers saw it as especially precious.
In a 1792 essay entitled “Property,” Madison declared that a person “has a property of peculiar value in his religious opinions, and in the profession and practice dictated by them.” In the same piece, Madison responded to the issue of when “a man’s religious rights are violated” by saying, “Conscience is the most sacred of all property.” The same man helped shepherd the First Amendment — which dedicated two crucial clauses to the subject — through Congress.
Finally, in respecting religious liberty, we still respect equality. Every person should receive the fullest protection afforded to him by law. To protect a religious person’s constitutional rights is to treat them as equal to others by giving them, as others receive, all constitutional and statutory privileges.
Therefore, we should affirm where the left condemns and celebrate where they bemoan. The court is not creating a theocracy or making Christians their specially favored people. Instead, it seeks equality for believers as fellow citizens under the law.
Adam Carrington is associate professor of politics at Hillsdale College.