Constitutional Protection is for Christians Only?

 

  Salem Witch Trials 1692/3

Today’s blog is about new and rising form of religious discrimination, protecting Christians and their belief system as it applies to others… but pretty much ignoring or subordinating the beliefs of other faiths, agnostics and atheists. The new standard bearer for this toxic practice? The United States Supreme Court. The Trump reconfigured Supreme Court has not only embraced a generally discredited, and once viewed as radical, notion of “originalism” – the theory that the Constitution has to be applied and interpreted as it was originally written, without adjustment for change of any kind (demographic, social, technological or otherwise) – yet where religion is at issue, only fundamental Christian beliefs matter. Students of history should be aware the even Thomas Jefferson would have found that supposition distasteful and un-American.

As U.C. Berkeley Law School Dean and Professor, Erwin Chemerinsky points out (LA Times, September 6th), the irony of the assumption of originalism “that there is an ‘original’ meaning for constitutional provisions that can be discovered. The reality is that so many people were involved in drafting and ratifying constitutional provisions, and practices were sufficiently divergent, that it is a fiction to say that there is a clear answer from history that can resolve modern constitutional questions… The result is that originalists pick and choose from the historical record to support the conclusion they want.” And if that Court were intentionally configured by a President whose very election was clearly made possible by a very conservative evangelical Base?

You simply have to look at the cases involving religion over the last few years to see how the infection of originalism combined with an evangelical bias has resulted in a bizarre, twisted litany of Supreme Court rulings that smack of unappealable fundamentalist legislation, overruling the Court’s own seminal and publicly supported precedents. The Court has openly signaled that our Founding Fathers never intended to erect a real barrier between church and state. But they did. In the First Amendment, and then more than 60 years later, in the equal protection provisions of the Fourteenth Amendment.

The biggest very recent religious fundamentalist case, Dobbs vs Jackson Women’s Health Organization (which reversed Roe vs Wade, leaving abortion decisions to the states), effectively adopted the evangelical view that “human” life begins at conception. In the Jewish and some other faiths, for example, the determinative date is the day of birth. Republican officials hailed this as sending abortion issues back to the states “where they belong,” while almost instantly beginning the process to ban abortion nationally to take that decision away from the states.

The net outcome of these judicial games is not protecting religious beliefs but legitimizing those who wish to force “reluctant others” to follow such religious bullies’ beliefs. As commercial enterprises seek the right to discriminate against employees and customers who somehow fall outside of their personal view of religious norms, the courts that rule in their favor are making a mockery of the above two constitutional amendments. Certainly, including the Supreme Court.

Writing an OpEd for the September 7th Washington Post, Louise Melling, deputy legal director of the American Civil Liberties Union, states: “Proponents of religious exemptions portray them as a shield to protect religious people from an increasingly secular United States. In reality, they’ve become a sword wielded to impose religious beliefs on others.

“There’s a straightforward explanation for the surge we’re seeing in religious refusals. In recent years, the Supreme Court has found in decision after decision that requiring compliance with anti-discrimination laws injures Christians, even as it blatantly ignores egregious forms of discrimination inflicted on women, racial minorities and LGBTQ people.

“Particularly important was the 2014 case Burwell v. Hobby Lobby Stores, in which the arts and crafts chain challenged a requirement that employer insurance cover contraception. In that case, the court expressly extended religious exemptions to ‘the commercial, profit-making world,’ to quote Justice Ruth Bader Ginsburg, for the first time.

“In a recent speech, Justice Samuel A. Alito Jr., quoting scripture, implored ‘champions of religious liberty’ to ‘go out as wise as serpents and as harmless as doves’ to challenge the ‘growing hostility to religion’ in America. The justice, who penned the Hobby Lobby opinion, now has a solid majority hungry to give these ‘champions’ whatever they want.

“This fall, the court will hear a major case asserting a constitutional right to discriminate. A public website design business in Colorado is objecting, on religious grounds, to serving same-sex couples seeking a wedding website. Although the court agreed to hear only the claim asserting a free-speech right to discriminate, declining to hear the religious freedom claim, a ruling in favor of the business could entitle those with religious or any other objections to ignore anti-discrimination laws. The United States could soon see bakeries with ‘wedding cakes for heterosexuals only’ signs next door to shuttered abortion clinics.”

We’ve also seen the high court finding a constitutional requirement for government to subsidize religious schools (Christian, of course) and a right for high school coaches to lead Christian prayers at school football games. Other federal courts have found for businesses whose faith rejects LGBTQ+ employees and customers, do not wish to cover HIV treatments in their company healthcare policies, that religious schools can fire unmarried pregnant teachers, taxpayer-funded evangelical child placement agencies can reject single-sex parents or even Catholics and Jews, that schools can refuse to accept transgender classifications, etc., etc. The Supreme Court seems to be the modern equivalent of the “wayback” machine. Salem Witch trials anyone?

Melling punctuates her comments with: “We have been here before. In the mid-1960s, a white supremacist who refused to serve Black people at his South Carolina barbecue restaurants argued that he was entitled to a religious exemption from the newly enacted Civil Rights Act. His lawyers told a trial court that the owner believed ‘as a matter of faith that racial intermixing or any contribution thereto contravenes the will of God,’ and therefore enforcing the Civil Rights Act against him ‘constitute[d] State interference with the free practice of his religion.” The Supreme Court dismissed the argument as ‘patently frivolous.’

“Champions of this ‘patently frivolous’ claim are back before a remade Supreme Court. Half a century ago, the court snuffed out the flame on claims that religious freedom gave institutions the right to violate anti-discrimination laws. This time, it is lighting the match.” In a nation of severely polarized irreconcilable differences, where the power has been handed to a zealous religious minority, we have to know that our reality is simply going to get a lot worse. Remember, these federal judges, even the Supreme Court justices, are appointed for life. 

I’m Peter Dekom, and unless the majority of Americans, who are deeply offended by the forced imposition fundamentalist mandates on them, get out and vote – election after election – we can watch “bad” disintegrate into an unbearably and autocratically “worse.”