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.
Efforts to weaponize religious freedom accelerated further in 2015, following the court’s marriage equality ruling in Obergefell v. Hodges. Three days after the Obergefell decision, Heritage Foundation senior researcher Ryan T. Anderson wrote that “pro-marriage citizens should follow the example of pro-life citizens.” What he meant was this: The Supreme Court’s ruling in Roe v. Wade stands, but conservative legal activists have chipped away at reproductive rights to the extent that abortion is nearly inaccessible in large swaths of the U.S. Anderson called on conservatives to similarly undermine anti-discrimination provisions protecting LGBTQ rights. “We must ensure that the government does not discriminate against citizens or organizations because of their belief that marriage is the union of husband and wife,” Anderson declared.
Religious conservatives have found a lot of success in the courts. In 2017, the conservative legal organization Alliance Defending Freedom helped Trinity Lutheran Church convince the Supreme Court that Missouri’s constitutional ban on using state funds for religious groups was actually a violation of the free exercise clause. And in 2018’s Masterpiece Cakeshop decision, ADF lawyers won over a majority of the justices by arguing the Colorado Civil Rights Commission violated baker Jack Phillips’s free exercise rights because it was hostile toward his religious belief that marriage is between a man and a woman. (Phillips, it should be noted, was the one who declined to serve a gay couple.)
Some observers dismissed the Trinity Lutheran decision as benign because it involved the funding of playground equipment, not prayer. But it laid the groundwork for this summer’s ruling in Espinoza v. Montana Department of Revenue, in which the court essentially held that the free exercise clause requires Montana to fund religious schools.
Also this summer, in Our Lady of Guadalupe School v. Agnes Morrissey-Berru, the court ruled that two Catholic schoolteachers were ineligible to sue for employment discrimination because they qualified for a “ministerial exemption.” This exemption, which exists for most employment laws, was created to give churches leeway in the hiring and firing of their ministers. But these teachers taught secular subjects. The decision essentially granted a carte blanche to any religious employer hoping to avoid discrimination claims by designating salaried employees as ministers. Combined with Espinoza, it means that it’s now easy to imagine public funds being used to pay for religious schools that are legally allowed to fire teachers for their sexual orientation or gender identity.
“Where religious liberty comes into conflict with other rights, religious liberty will always win,” said Franke. There’s no reason to believe religious freedom couldn’t be use to evade race discrimination laws, she added.
This was clear in one of the court’s final decisions last term, Little Sisters of the Poor v. Pennsylvania. A 7–2 court upheld a Trump administration rule broadening exemptions from the Affordable Care Act’s contraception mandate. Writing for the majority, Justice Thomas expressed sympathy for the Little Sisters, who “have had to fight for the ability to continue in their noble work without violating their sincerely held religious beliefs.” Only Justice Ginsburg and Justice Sotomayor seemed concerned that the “expansive religious exemption” would impose significant burdens on the women who work for the nuns in their network of nursing homes.
Taken as a whole, these decisions have set dangerous precedents for similar cases. And we won’t have long to wait before the Supreme Court faces a similarly crucial case. On November 4, the court will hear oral arguments in the case of Fulton v. City of Philadelphia. This dispute stems from a disagreement between Catholic Social Services and the City of Philadelphia, which contracted with the agency for foster child placement. Catholic Social Services argues that the city discriminated against it because of the agency’s religious beliefs.
“Philadelphia demands that a religious agency, an arm of a church, speak and act according to Philadelphia’s beliefs,” Catholic Social Services’ lawyers have argued. “The free exercise clause was made for cases like this one.” They have also launched a separate website, Free to Foster, to share the stories of the foster families who are unable to take care of children because of Philadelphia’s policies. The website lists other jurisdictions where governments have “bullied” and “targeted” “faith-affirming foster care ministries.”
In fact, Philadelphia ended its contract with Catholic Social Services because the agency has refused to place children with LGBTQ parents, in violation of city nondiscrimination rules. (The city renewed its contract with Bethany Christian Services, another agency that refused to place children with same-sex couples, after Bethany changed its policy.) The agency isn’t just asking for an exemption from the law. It’s asking to be publicly funded on its own terms.
“The bottom line is, it’s the government’s money,” explained Caroline Mala Corbin, a professor at University of Miami School of Law who joined several other First Amendment scholars in an amicus brief supporting Philadelphia. “If they don’t want to give it to a group that discriminates, it certainly doesn’t violate the free exercise clause.”
The arguments raised by Catholic Social Services echo the cries of right-wing pundits who argue that liberals are showing anti-Catholic bias in their criticism of Judge Barrett. Indeed, Barrett’s religious views on abortion do stand in tension with millions of Americans’ desire and right to preserve their bodily autonomy. Should Barrett be confirmed, she would join a Supreme Court all too willing to dismiss the latter.
Ultimately, we don’t know how a Justice Barrett might rule in a future case like Fulton or how she might have ruled in the cases the court heard last term. There is plenty of evidence that she’s likely to side with conservative religious actors, however. In 2018, while on the Seventh Circuit, she ruled that a Hebrew teacher at a Jewish private school was barred from suing the school under the Americans With Disabilities Act because of the law’s ministerial exemption. Barrett has said the Affordable Care Act’s birth control mandate was an assault on personal religious freedom. She has also been a paid speaker at several law school training events run by the Alliance Defending Freedom.
But the Supreme Court’s current conservative majority hardly needs to wait for Barrett to join them. Just this week, Justices Thomas and Alito went out of their way to call Kim Davis, the Kentucky county clerk who refused to issue a marriage license for a same-sex couple, a “victim” of Obergefell. In an unusual statement accompanying the court’s decision not to hear Davis’s appeal, the justices lamented Obergefell’s “cavalier treatment of religion” and clutched their pearls at the notion Davis might be a bigot. It seems likely that Trump’s latest high court nominee shares these beliefs. It seems just as likely, however, that they’ll make their way into Supreme Court rulings even if the vagaries of electoral politics or the coming confirmation process prevent Barrett’s ascension.