There is a deliberate effort afoot among elite opinion makers to slur and, therefore, delegitimize the United States Supreme Court. Its greatest impetus came from the Dobbs decision, restoring government authority to protect the unborn. Nothing will galvanize that group quite like questioning the tenets of the Sexual Revolution.
But religion usually takes a close second. And religion gets stuck in their throats.
Take two recent New York Times articles. Longtime erstwhile Supreme Court reporter Linda Greenhouse urges us to look askance when we “Look at What John Roberts and His Court Have Wrought Over 18 Years.” The essay is a litany of her grievances with Chief Justice John Roberts.
Orthodox. Faithful. Free.
Sign up to get Crisis articles delivered to your inbox daily
Apparently, Greenhouse had pinned her hopes on Roberts channeling his inner Anthony Kennedy and rescuing the Court’s “institutional reputation” (i.e., preventing it from handing down rulings Linda Greenhouse doesn’t like). Once upon a time, there had been hope Roberts would “moderate” the Court. But with Justice Amy Coney Barrett’s 2020 confirmation, a working majority apparently has decided not to prevaricate for the fleeting plaudits of Times op-ed writers.
In the second Times article, Kate Shaw bemoaned “The Supreme Court’s Disorienting Elevation of Religion.” Linda Greenhouse has also long been attacking current Supreme Court jurisprudence on religion. She’s never seen a ruling for religious plaintiffs she could stomach.
Her vitriol grew especially acerbic when the Court began striking down Covid rules in states that treated religious activities (like going to Mass) and houses of worship (like churches) more restrictively than other institutions (like liquor stores). How dare those non-scientists second guess a state’s best considered judgment that Covid spread was less likely to occur at your local abortion clinic than St. James Church? (Next thing you know, these non-biologists might even start opining on “what is a woman?”)! Her vitriol grew especially acerbic when the Court began striking down Covid rules in states that treated religious activities and houses of worship more restrictively than other institutions.Tweet This
Shaw’s essay, however, deserves some comment, if only to make Catholics aware of its religious and theological implications for them.
Among last term’s cases Shaw is particularly aggrieved about is the Groff decision.
Groff involved a Pennsylvania Protestant postal worker who was dismissed after refusing to work on Sundays. Working on Sundays was a violation of his religious convictions. To accommodate his employer, he transferred to a rural Pennsylvania post office, which did not work on Sundays. Later, when the postal service contracted with Amazon to deliver the latter’s packages on Sundays, Groff took over the shifts of other workers willing to work in his place on Sundays.
That still didn’t satisfy the Postal Service. It relied on a 1977 Supreme Court case that said that, in accommodating an employee’s religious needs, an employer did not need to do more than the minimum (de minimis) to try and adjust to the employee. Even if Groff managed to have the shifts covered, the Postal Service still claimed the burden of having to adjust its paperwork was more than just a de minimis burden that justified its firing Groff.
In Groff, the Supreme Court overturned the 1977 case. What that meant was that it abandoned the court-created de minimis standard, one by which there was practically no burden on the employer while no amount of effort by the employee to meet his employer’s needs was ever enough. The Court instead decided that the appropriate test put the burden on the employer: the employer had to show why he could not accommodate his employee’s religious needs, rather than shunt off that responsibility by claiming it had tried the minimum.
Why is this new test “appropriate?” Because the Court has a conservative majority? Because there are six raging Catholics on it (five of whom adopted this new rule)?
No. They did so because the very first right the Constitution talks about in the First Amendment to that Constitution guarantees freedom of religion. The First Amendment speaks of free exercise of religion, free speech, a free press, and the right to petition. And the first of those freedoms in the First Amendment is freedom of religion.
If that’s what the Constitution says, then a court-created rule about how to apply that general principle to workers seeking to balance religious freedom and work obligations ought to protect religion.
Why did that bother Ms. Shaw and Ms. Greenhouse? Because the Court has been retreating from a series of rulings, dating back to the late 1940s, which I would argue were wrongly decided anyway.
The First Amendment speaks about freedom of religion. It does so in two clauses: it says Congress cannot erect an “establishment of religion” nor impair its “free exercise.”
The late Rev. Richard John Neuhaus argued those two clauses serve one end: freedom of religion. By barring Congress from “establishing…religion,” it meant that the government could not prefer one religion over another (e.g., no Presbyterian Pennsylvania versus Methodist Maryland).
Starting in the late 1940s, however, the Supreme Court began reading the prohibition on “establishment of religion” to mean not preferring one denomination over another but as giving no recognition at all to religion per se. The upshot was that the Court set those two First Amendment clauses at loggerheads: when would any public role by religion cross the line from “free exercise” to “establishment?”
What followed has been 75 years of ad hoc confusion, where rulings came down not on the basis of principle but by whichever side could cobble a five-judge majority. The practical consequence was that freedom of religion was often turned into freedom from religion, leading to the model of what Neuhaus called “the naked public square” (i.e., social life shorn of any religious elements or even inspiration). This mockery of “democracy” insisted that the majority of believing Americans pretend, as the price of participating in civic life, that religion had no influence on how they saw life, society, or the common good.
The Supreme Court is retreating from that. Good.
The Founding Fathers spoke of “rights” and “interests.” Religion is a “right,” explicitly spelled out at the very top of the Bill of Rights. “Interests” are things like business and commerce. In the Constitution’s value system, “rights” trump “interests.”
The secularists for whom the past 75 years of jurisprudence have been Paradise want to reduce religion to just another “interest.” Indeed, it’s a kind of evil “interest,” because its presence might “taint” freedom from religion. Shaw gives expression to this mentality, lamenting that, in Groff, “the court’s elevation of religious exercise above all other principles poses a genuine threat to the ability of our businesses and institutions to make arrangements that account for the competing demands of America’s diverse population.”
Now you know what really matters: the Supreme Court shall not abridge your right to Sunday Prime delivery of your Java Bean Juice Keurig refill for that afternoon brew. That’s why religion is stuck in the elite’s throats.