The Religious Hijacking of the Supreme Court Doesn’t Require Amy Barrett

Supreme Court nominee Amy Coney Barrett has already drawn a substantial amount of scrutiny for her conservative religious beliefs and her potential willingness to overturn Roe v. Wade. An originalist in the mold of her mentor Justice Antonin Scalia, Barrett could hamper liberal causes for decades to come. But it’s perhaps underappreciated just how much the conservative religious takeover of the court has long been underway. If Barrett is confirmed, she will join a bench that has already tipped the balance of church and state toward the former. Even if she isn’t confirmed, make no mistake—this trajectory is already laid in.

The last Supreme Court term brought a landmark win for LGBTQ individuals in the United States, with the ruling that Title VII of the Civil Rights Act prohibits discrimination on the basis of sexual orientation and gender identity. Liberals rightly celebrated the ruling as a substantial, and unexpected, victory. But in three other cases that drew less coverage from the media—Espinoza v. Montana Department of Revenue, Our Lady of Guadalupe School v. Agnes Morrissey-Berru, and Little Sisters of the Poor v. Pennsylvania—the court took positions that could undermine those newly won rights. In these matters, the majority of the court endorsed a growing and dangerous interpretation of religious freedom that leaves many Americans vulnerable to the discriminatory religious beliefs of others. 

Columbia Law professor Katherine Franke describes the underlying ideas of the majority as “free exercise supremacy.” According to Franke, the court has created a tiered set of rights, where religious freedom is a first-class right, but sexual equality, LGBTQ rights, and reproductive rights are second-class. Franke believes the court’s language is particularly telling. “As you read the opinions, what you have is a kind of sterile, mechanical reasoning in equality cases and a deep moral reasoning in religion cases,” she said. “You get the sense that religious liberty is fundamental to American democracy, but equality is just reading a sentence in the statute.”

We may soon see this reasoning play out. In a case coming up in November, the Supreme Court might grant a pass to religious government contractors who don’t want to comply with civil rights laws. It’s a ruling that could cement the legal weaponization of religious freedom that began more than five years ago, and the court’s current majority doesn’t require Barrett’s participation to see this through.

The contemporary period of errant religious freedom law kicked off with the Supreme Court’s 2014 Burwell v. Hobby Lobby ruling, which exempted the craft store from the Affordable Care Act’s contraception mandate because of its owners’ religious views. The ruling was a radical departure from previous law, which had generally protected the religious rights of churches and individuals but not for-profit corporations.