Constitutional Law

Arguments For Religious 'Accommodation' Have Become Tyrannical

Respect for pluralism is one thing, trying to make nonbeliever rights submissive to conservative religious views is entirely another. 

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It is undeniable that religious groups, even recently, have faced serious and vile prejudice from government-run organizations, particularly on college campuses. It is also important to note that our nation’s courts at the time rightfully stepped in to prohibit and correct this vile prejudice wherever claims were brought. Perhaps due to an overcorrection of the problem on college campuses, however, the religious liberty landscape has shifted considerably in the past five years. That this shift in religious liberty doctrine has incurred alongside the wildly successful conservative political effort to reshape the judicial branch is not a coincidence. Now, instead of defending religious groups from discrimination, our nation’s courts are openly declaring that conservative religious views enjoy a privileged position in the First Amendment above all other rights. Including, according to Amy Coney Barrett, being above political speech, once universally accepted as being at the core of the First Amendment’s guarantee.

Until the politically motivated conservative takeover of our courts, First Amendment religious liberty doctrine reflected a commitment toward ensuring religion had equal access to the public square and that government remained neutral. With conservatives dominating the judicial branch, however, any pretense of neutrality was quickly abandoned and religious dominance over nonreligious rights or views is now established legal doctrine. Things also look to be getting rapidly worse.

Nothing is certain of course, but at this point only a fool would think that this new superconservative majority Supreme Court is going to rule against the Catholic Church in Fulton v. City of Philadelphia. As the national litigation director of the ACLU David Cole points out, however, in order to rule in favor of the church the superconservative majority will have to abandon three basic tenets that form the bedrock of conservative constitutional jurisprudence: 1) the Constitution’s limitation to negative rights; 2) the federal government and the states have authority to set the terms for their own business, and; 3) the notion that a law’s disparate impact is insufficient to violate the Constitution.

Anyone who has read my work here at Above the Law would see that I have repeatedly brought attention to Cole’s third point. Indeed, I submit the Supreme Court has already abandoned this basic conservative precept in order to favor religion above all other viewpoints. But like the organization FIRE, I agree that Cole has “authored what is likely to be one of the most insightful pieces ever to be written on the [Fulton] case, especially when it comes to First Amendment jurisprudence writ large.” So, let’s examine Cole’s other claims regarding potential conservative abandonment of precepts.

The first is the long-held conservative view that the Constitution is limited to negative rights. As Cole explains, “Justice William Rehnquist wrote in 1983, the Court has long rejected the notion that First Amendment rights are somehow not fully realized unless they are subsidized by the State” (internal quotation marks omitted). In other words, conservatives have long rejected the argument that the Constitution established affirmative entitlements. Rather, conservatives have instead maintained that the Constitution confers what’s called a “negative right” that guarantees the individual to be free from state interference. Now let’s apply this traditional conservative precept of “negative rights” to the facts in Fulton.

In Fulton, Catholic Social Services (CSS), voluntarily entered into a contract with the City of Philadelphia to carry out a government program of certifying qualifying foster parents for the city’s wards under a specific set of criteria. For example, a city ordinance prevents any organization providing these services on the city’s behalf from discriminating on the basis of race, sex, or sexual orientation. CSS sued, arguing that its religious view of marriage as being exclusive opposite-sex relationships should take precedence over the rights of same-sex couples to be treated equally when participating in government programs.

A key distinction to make in Fulton, therefore, is that this is demonstrably not a “negative rights” claim where an organization or individual is asking for the right to be free from government interference. CSS is instead arguing it has the right to violate the terms of a government contract it voluntarily entered into. As Cole puts it, CSS is not arguing for “a right to be free of government regulation of its private conduct, but an affirmative entitlement to millions of dollars in government funds to perform a government program, while violating the terms of the government contract and discriminating against individuals seeking to participate in the program.” Nevertheless, despite the claim in Fulton representing everything conservatives have said the Constitution was not over the past 50 years, CSS is widely expected to prevail.

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The second conservative precept Cole identifies at being play in Fulton for conservatives to abandon is the principle that “when the government is managing its own affairs, as opposed to exercising sovereign power to regulate private activity, it must have broad leeway to set the terms.” Cole points to a recent 2006 SCOTUS decision declaring that “[g]overnment employers, like private employers, need a significant degree of control over their employees’ words and actions,” as “there would be little chance for the efficient provision of public services” if governments could not exercise this authority. But that was before this new superconservative majority who seems hell bent on establishing religion as superior to all other rights, particularly the rights of LGBT citizens to be free from discrimination when participating in government programs.

I bring attention to Cole’s arguments and continue to harp on the Fulton case because the moment warrants such focus and criticism. In a time of deep divide when the head of conservative party in Texas is openly flouting secession. The last thing this country with a rapidly increasing nonbeliever population needs, is for the Supreme Court to keep defining religious citizens as being in a class above all others, empowered with the ability to stomp out dissent or competing nonreligious views, even within government programs.

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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