Chief Justice Strikes A Blow For Balanced Religious Liberty

The theocratic movement is far from finished, but it appears more and more that the Chief Justice is willing to draw the line.

Given all of the horribleness going on, you could be forgiven for missing this bit of good news: Chief Justice John Roberts not only rejected dishonest arguments pertaining to religious liberty as “quite improbable,” he worked across ideological lines to strike a reasonable balance between public health and First Amendment guarantees. With several important religious liberty cases still waiting to be decided this term — including whether states and individuals can be forced to financially support private education (including religious education) — it is still too early to declare that the theocratic movement has suffered a meaningful defeat. Nevertheless, the Chief’s rejection of dishonest arguments made by members on the court who often share his ideological views is a welcome sign for our future.

To begin the analysis, I expect many would dispute my claim that a significant theocratic movement, meaning those who would have the government operate in the name of a god, is taking place here in the United States. In response to such skepticism I can only point to the current attorney general who claims (a demonstrably false claim mind you), that those who reject Judaism and Christianity are directly responsible for increasing societal harm such as “depression and mental illness,” “suicide,” “senseless violence,” and furthering “a deadly drug epidemic.” Or I could point to the current AG’s predecessor, Jefferson Beauregard Sessions, who claimed nonbelievers were unfit for government service and in fact a threat to our government because “without god, there is no truth, and it’s all about power, ideology, advancement, agenda, not doing public service.” Or I could point to numerous cases where federal judges have upheld designating nonbelievers to second-class status by prohibiting them from addressing their own state legislatures or performing private professional services for no other reason than they do not profess a belief in a god. In other words, although reasonable people can perhaps disagree on the extent and threat of this theocratic movement, I don’t think reasonable people can disagree that one is taking place and that it has achieved some measure of political power and legal success.

What makes the increasing political and legal hostility toward nonbelievers so alarming is that nonbelievers represent a rapidly increasing section of the population. Therefore, the need to take a more balanced approach to religious freedom where religion is not favored over nonbelief has arguably never been greater. In fact, religious favoritism in the law, regardless of the social makeup, has never worked out well for any country. A historical fact the drafters of our Constitution understood as much as anyone, and precisely why they took steps to separate religion from civil authority so as to avoid conflict.

Returning to the past Friday, the Chief, along with the Court’s “liberal” justices denied a California church’s attempt to block COVID-19-related state restrictions on church attendance. Religious objection to pandemic restrictions on church gatherings has been well documented, with some churches openly declaring they would violate these orders. The crux of the religious legal argument in California was that while certain retail businesses were allowed to open, churches were still being restricted to 25% capacity with a limit on 100 people.

In the California brief to the Court, however, it was explained at length why the state was treating all large gatherings, including church services, differently from smaller retail businesses. Put simply, large gatherings such as concerts or church services pose a heightened risk of spread given attendees are “stationary in close quarters for extended periods of time.” In fact, the California brief included the explanation of an epidemiologist with the California Department of Health who stated there “have been multiple reports of sizable to large gatherings such as religious services, choir practices, funerals, and parties resulting in significant spread of COVID-19.”

Despite the fact that California offered this drawn out, science-based argument, when issuing his dissent, Justice Brett Kavanaugh repeatedly claimed that California had not offered any reasoning justifying why it was treating church services differently than retail. Given the amount of ink the California brief devotes to this specific point, Kavanaugh’s denial that it exists is difficult to describe as being anything other than dishonesty. But the issues with Kavanaugh’s dissent do not end with such blatant dishonesty.

Under Kavanaugh’s proposed standard, any appearance of differential treatment of churches amounts to discrimination. This is an interesting position given that it so wildly conflicts with the Court’s standard when it comes to racial discrimination. In McCleskey v. Kemp, for example, the Court was given a report called the Baldus study which identified a clear and consistent pattern of discrimination in the use of the death penalty against defendants who were charged with killing white victims compared to those charged with killing black victims. Moreover, the study found a substantial number of cases and data demonstrating this discriminatory pattern applied to the county in which the black defendant, Warren McCleskey, was sentenced to death. Yet, despite the fact that the Court would accept the Baldus study as “valid statistically,” because no evidence was presented “that would support an inference that racial considerations played a part” the Court ultimately refused to establish a violation of the Constitution.

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It would be difficult to explain why there should be such a different standard for discrimination against religion where any form of differential treatment (including for public health reasons), amounts to a constitutional violation while clear patterns of racial bias is not enough. Of course, Kavanaugh could declare that the death penalty has been applied in a manner inconsistent with constitutional guarantees (I would), but something makes me think he won’t. Until he does, he should be forced to explain why he thinks discrimination against religion should enjoy a standard facially easier to overcome than proving racial discrimination. Or perhaps Kavanaugh could simply admit his dissent was nothing more than the continuation of those on the Court and elsewhere, to elevate religious belief (but really only Christianity) above all other social and constitutional considerations.


Tyler Broker’s work has been published in the Gonzaga Law Review, the Albany Law Review, and is forthcoming in the University of Memphis Law Review. Feel free to email him or follow him on Twitter to discuss his column.

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