Courts

The Tragic Politicization Of Religion

If religion and government were kept separate as originally intended, no Supreme Court nominee’s beliefs could ever be a legitimate issue.

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Amy Coney Barrett. Photo via Wikimedia Commons

There can be no doubt that some of the criticism of Amy Coney Barrett’s nomination to the Supreme Court is sprung out of a bigotry against her religion. Therefore, it should be said at the outset of any discussion of her nomination that every American who values the constitutional guarantee of religious and free conscience freedom should condemn this bigotry wherever they see it. Of course, if applied as written, the guarantee of freedom of conscience ensures that it would not matter to any American what religion a Supreme Court Justice personally practices. Unfortunately, however, contemporary courts have methodically dismantled this extraordinary framework of freedom of conscience by routinely upholding government favoritism of and compelled financial support for religion. The tragic result of this dismantling means that not all of the expressed concern over Barrett’s views on religion can be dismissed as the product of bigotry. There is simply a massive difference between arguments that Barrett should not be on the nation’s highest court because of her religious views, from arguments that Barrett is not a good choice because she will likely not only further, but accelerate government favoritism and compelled support of religion at the expense of the free conscience liberty of others (particularly nonbelievers).

Further complicating this discussion is that many conservative supporters of Barrett will immediately dismiss the notion that religion is favored by our government and our courts. Never mind that even a cursory examination of the current United States federal tax code reveals that religious organizations enjoy a plethora of unique rules and a more favorable standard not shared by secular tax-exempt organizations. Or that unlike every other secular tax-exempt organization, a church does not even need to apply for tax-exempt status. Never mind that the federal government has granted “special privileges to religious organizations beyond what is available to similarly situated nonreligious groups” under the recent Paycheck Protection Program. Even when the Supreme Court declares that forcing nonbelievers to pay for the maintenance of overt religious symbols, or compelled support for the religious education of others is required under the First Amendment while compelling public sector employees to support the union that represents them is somehow a bridge too far, many will, and with a straight face, deny that any favoritism of religion is taking place in our government or in our courts. To these deniers in fact, unless the state can compel nonbelievers to pay for religious symbols and religious education which teaches that nonbelievers, gays, and other religious people are sinners or abominations that will rot in a hell for all eternity unless they accept their faith, it is religion that is being discriminated against.

Along with the denials of clear favoritism and compelled support of religion by government is an outright legal hostility toward nonbelievers, likely based on larger religious notions of bigotry. Moreover, it is also worth pointing out, indeed it is worth insisting on, that the same people who are losing their minds that people are concerned with Barrett’s religion never expressed a word of concern but even celebrated when the current attorney general blamed nonbelievers collectively for all of the country’s problems.

The larger point to be made here, however, is that when the line between church and state is being dismantled, when nonbelievers are regularly being forced to financially support religious views and institutions they personally reject, when high-level government actors demonize nonbelievers collectively as the cause of all the country’s woes, the view of lifetime government appointees toward religion becomes a legitimate concern to a growing nonreligious population. To be clear, I want a country where the personal religious beliefs of anyone in government is simply none of my business. I want to feel confident that I will not be compelled by government to support or adhere to such personal beliefs. But that is not the country we are living in. The country we live in now is currently battling over whether religious organizations can deny foster children, in a government program mind you, the benefit of having access to qualifying, loving homes.

Of course, this does not mean all concerns with Barrett’s religious views are fair. As I said at the outset, Barrett is certainly facing criticism that can only be described as being bigoted in nature. What would be fair, however, is if Barrett or her supporters listened to the legal concerns of nonbelievers and at least admit the blatantly obvious fact that nonbeliever free conscience liberties are being regularly trampled upon or ignored by contemporary courts. The problem is that in order to put Barrett on the Supreme Court, Barrett’s Senate supporters do not have to acknowledge government favoritism of religion or bigotry against nonbelievers. And when Barrett joins an already religious conservative Court the need to respect nonbeliever free conscience liberty in order to achieve a majority opinion in any religious liberty case will be nonexistent. The likely result, therefore (but I hope I am wrong), will be an acceleration of the already tragically growing politicization of religion, an outcome the First Amendment was originally intended to prevent.

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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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