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Column: Religious freedom in the Kavanaugh era

SCOTT PIEPHO
Cases and Controversies

Published: October 19, 2018

Of the many unfortunate aspects of the recent hearings regarding Judge Brett Kavanaugh’s appointment to the Supreme Court, one of the most unfortunate was the outsized attention given to his opinion of Roe v. Wade.

I understand that it’s a sentinel culture war issue that it lends itself to easy messaging and that Sen. Susan Collins is the only human being in North America who claims to believe that a Justice Kavanaugh would not overrule Roe.

Nonetheless, a post-Kennedy court portends farther reaching changes that received scant attention. One under-covered area is the ongoing collision of the religious freedom with antidiscrimination laws.

While the court recently discussed a case like this in Masterpiece Cakeshop, it fell well short of offering definitive boundaries between religious exercise and discrimination. Instead, it only held that when deliberating about a religious person’s desire to discriminate, you can’t say mean things about it.

Masterpiece Cakeshop represented more than a judicial retrenchment after a series of decisions expanding protections based on sexual orientation and gender identity. It expressed two other trends within conservative jurisprudence: An expansive notion of the rights protected under the general rubric of religious freedom and an increasing willingness to extend individual rights to corporations.

If these seem like three incompatible trends converging within the conservative wing, consider them as part of a generally libertarian tilt to the court. Justice Kennedy was the most libertarian justice in a generation—perhaps the most libertarian since the Gilded Age courts that gave us the Lockner era.

Kennedy’s philosophy is neatly summed up in his book title The Tie Goes to Freedom. While justices Kavanaugh and Neil Gorsuch share Kennedy’s fulsome regard for corporations, they exceed him in their zeal for expanding religious freedom but are untempered by a Kennedyesque respect for other individual rights.

When then-Judge Kavanaugh referenced hormonal birth control pills as abortifacient in reference to the Hobby Lobby case, liberal commentators chided him for his ignorance. In context, it wasn’t clear whether he was referring to his own belief or to a belief sincerely held by the business owners.

The important point is that it doesn’t matter. When protecting religious expression, the courts take as a given that the state may not discriminate based on a judgment that sincerely held beliefs are in fact wrong.

If someone wants to practice a religion that says in the afterlife you get your own planet or that the church will clear from you the spirits of aliens killed in a long-ago civil war, the government is not allowed to respond that you can’t do that because you are wrong.

That forestalls the obvious argument that a particular business relationship with a person whose mode of living offends one’s religious values doesn’t amount to an endorsement. As long as a business owner holds a sincerely held belief that doing business with the person is tantamount to endorsement, the court will consider a religious freedom claim.

The Supreme Court struck a grand bargain in Employment Division v. Smith (a.k.a. the Native American peyote case). People are allowed their sincerely held beliefs, but when they take those beliefs into the public sphere--especially the marketplace--they must abide by any neutral government regulations, even those that impinge on exercising their beliefs.

Congress immediately attempted to overthrow this bargain with the Religious Freedom Restoration Act under which most free exercise cases are currently litigated.

Kavanaugh was never asked his opinion of Smith. I’m guessing that the court currently includes three (Kavanaugh, Gorsuch and Clarence Thomas) or four (maybe add Samuel Alito) votes to overturn it. In any case, all the conservatives have indicated a willingness to expand the scope of the federal act.

I am concerned about how this will play in religious accommodation cases. For example, a business with a Muslim employee should allow the employee time and space to pray during the day and to allow a Muslim woman to wear a head covering if she chooses.

An employer claiming that accommodating the practice of Islam would offend his faith would sound out a case that turns on whether his exercise of religion overrides the social good of preventing discrimination.

Once the freedoms guaranteed by the act--and more so the Constitution--are fully extended to corporations, it offers no clear end-point to the exceptions the law will carve into nondiscrimination laws. It’s difficult to envision a version that provides any protection against religious discrimination, and once that is gone nothing stops the court from carving exceptions in proscriptions against race discrimination as well.

Time will tell, but civil libertarians may soon wax nostalgic for the days when they were primarily concerned with reproductive rights.


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