Supreme Court conservatives have asserted their power
The enduring depredations of the Trump presidency were underscored by last week’s testimony before the House Select Committee investigating the events of January 6, which left an indelible portrait of Donald Trump as a ready-to-eat food-throwing despot. encouraging an armed crowd to march to the Capitol. And, in addition to a coup attempt, we have him to thank for making 2022 the turning point for the conservative Supreme Court revolution.
In a single week at the end of June, conservative justices asserted their newly consolidated power by expanding gun rights, tearing down abortion rights, tearing a hole in the wall between church and state and reducing the ability to fight climate change. The Court does not behave like an institution invested in social stability, even less in the importance of its own role in safeguarding this stability. But what if its large and rapid moves, eviscerating some constitutional rights and inflating others, are doomed to collision? While those aggrieved by one aspect of its agenda look to other aspects of it for protection, the Court may not be entirely happy with the direction this process is taking.
Shortly before the Court, in Dobbs v. Jackson Women’s Health Organization, quashed Roe v. Wade, a synagogue filed a lawsuit in Florida court challenging, under the Florida constitution, the state’s new law criminalizing pre-viability abortions. Among the plaintiff’s allegations, the abortion ban violates the right of Jews “to freedom of religion in the most intimate decisions of their lives.” The lawsuit says Jewish law states that life begins at birth, not before, and “compels the mother to abort the pregnancy” if there is a risk to her “health or emotional well-being.” Thus, according to the plaintiff, the ban on abortion infringes the free exercise of the Jewish religion.
Many post-Dobbs lawsuits can also be expected to argue that abortion bans violate state constitutions, which may be more protective of individual rights than the federal constitution. Marriage equality, for example, was protected in Massachusetts by a state constitutional ruling twelve years before the Supreme Court declared a federal constitutional right to same-sex marriage. Republican-dominated state courts, no less than GOP-led state legislatures, may well thwart these efforts to preserve abortion access. Last month, the Iowa Supreme Court simply reversed its own 2019 ruling affirming a state constitutional right to abortion, leaving Iowa free to ban the procedure.
But the Jewish group’s claim is one indicator, as the Supreme Court has recently been extremely accommodating of people’s religious views. This term, two cases have resulted in landmark extensions of the First Amendment’s free exercise clause. The Court ruled that Maine, which provides tuition funds to students who reside in districts without public high schools to attend secular schools elsewhere, must also provide funds to those students who choose to attend religious schools. The Court also ruled, in the case of a Washington State public high school football coach, who knelt and prayed on the field after games, that the school district could not stop him. , although he only wanted to avoid the appearance of endorsing religion. The result, Judge Sonia Sotomayor wrote in a dissenting opinion, is that the court “elevates an individual’s interest in personal religious exercise. . . on society’s interest in protecting the separation between church and state. And, in a free-speech case this quarter, the court ruled that Boston must allow a group to fly a Christian flag on the flagpole outside City Hall if it allows other groups to raise non-religious flags, such as the pride flag.
The Supreme Court’s expansion of religious freedom is longstanding, but it has accelerated rapidly in the two years since the court won a conservative supermajority. Early in the pandemic, in 2020, the Court repeatedly denied claims by churches that opposed state stay-at-home orders. But, after Judge Amy Coney Barrett was confirmed in the fall of 2020, a majority — the same five conservative justices who ultimately voted to overturn Roe v. Wade – spoke out in favor of Catholic and Orthodox Jewish organizations that opposed stricter statehood. limit for places of worship than for essential businesses. Similarly, courts have historically and consistently dismissed challenges to the religious free exercise of mandatory vaccinations, such as admission to schools. But, since last year, a number of courts have required religious exemptions for covid– vaccine mandates. According to a recent Yale Law Journal study led by Stanford Constitutional Law Center fellow Zalman Rothschild, “while every federal court in the country facing the issue has dismissed vaccine mandate challenges brought under free speech or due process theories, challenges to free exercise have succeeded in securing victories for vaccine objectors. He has since noted that “free exercise has exploded out of proportion. Indeed, this expansion threatens to allow people to claim a right to free religious exercise to discriminate against LGBTQ people. But it can also arm those seeking religious exemptions to the abortion ban with powerful arguments that the courts will have to wrestle with. And some groups making such arguments may be at beyond the grasp of the general public, let alone that of the Republican-dominated courts.
The Satanic Temple, for example, headquartered in Salem, Massachusetts, claims seven hundred thousand registered members in congregations around the world. Courts and the IRS have recognized the organization as a religion (which does not actually worship Satan as a deity, but rather views him as a symbol of dissent against tyrannical authority). In keeping with one of its core tenets – that “her body is inviolable, subject to its own will alone” – TST has filed several lawsuits claiming free exercise that opposes the abortion ban. His position is that a state’s imposition of a waiting period or counseling before an abortion is as much a violation of religious freedom as it would be before a baptism or communion.
We are used to hearing religious objections to abortion. Religious objections to the ban on abortion also reflect the fact that for many people the questions of when human life begins and whether to have a child are primarily influenced by their religious beliefs. It is possible that these claims of free exercise will not succeed, because avoiding hypocrisy is not a value we expect of this Supreme Court, any more than we expect of the man responsible for its composition. The select committee and the Justice Department can still hold Trump to account for some of his actions, but, despite Justice Ketanji Brown Jackson’s historic swearing-in last week, we’re stuck with his court and the damage it does. will cause, for the next generation. ♦