Democracies depend on law; authoritarian systems prefer legal theater. In recent cases having to do with religion, the conservative majority on the Supreme Court has shown a distinct preference for the latter. This unsubtle turn in the direction of performative justice is among the more disturbing developments in American politics over the past decade. It is evidence of the drift in America’s right flank toward a new authoritarian religious nationalism.
This kind of performative justice is likely to be on display in the forthcoming decision in Fulton v. City of Philadelphia, where the court is considering how to tell the story about the alleged “rights” of religious organizations to demand public money. But these types of theatrics have already been in full operation in many recent decisions.
Consider the court’s recent decisions at the intersection of the Covid-19 pandemic and religion. It is alarming enough that the conservative majority on the court sought to exempt houses of worship from Covid-related public health laws that applied to everyone else. More troublesome in the long run, however, is that the real goal of the court’s intervention was to reinforce a certain narrative—a narrative of Christian nationalism, as it happens—through a piece of courtroom theater.
Earlier in the pandemic, Santa Clara County issued a set of temporary restrictions on a wide range of indoor gatherings, including readings at bookstores and film showings in theaters, and attendance caps at indoor worship services. The restrictions came in response to a surge of Covid-19 infections that left the county with over 1,700 dead and a local hospital system straining under the demands. But on February 26, the U.S. Supreme Court’s conservative majority swooped in to tell the county that those temporary restrictions, insofar as they applied to worship services alone, were unconstitutional.
Here, the court invoked its November 2020 ruling involving Covid safety regulations in New York City. In that instance, too, municipal authorities put in place restrictions intended to protect public health, whereupon five conservatives on the court stepped in to annul the safety regulations according to the same rationale houses of worship.
There was no evidence that officials in either Santa Clara County or New York City had sought to maliciously take advantage of the pandemic to infringe on the freedom to exercise religion. Nor was there any evidence that officials intended these restrictions to persist beyond the immediate emergency of the pandemic itself. Even if some of the regulations were poorly designed (as may well have been the case in New York City), there is also no reason to think any inadvertent infringement of religious rights could not have been dealt with through state and local governments. When a fire code requires that all buildings have smoke detectors and emergency exits, for example, the code doesn’t infringe on religious freedom just because it applies to church buildings too.
But the most striking thing about the court’s action in the New York City case, as Chief Justice John Roberts himself pointed out in his dissent, is how gratuitous the decision of the majority was. The regulations that had spawned the suit in the first place were in the process of being withdrawn at the time of the decision, and houses of worship had by then been given leave to hold services with up to 50 percent capacity; the court’s interference in the matter did not change anything on the ground. Indeed, the only “precedent” the Supreme Court conservatives advanced is that religions of a certain variety will have the privilege of overturning state and local laws to which they object by calling in the Supreme Court.
So what was the point of the court’s intervention? It appears as though the real purpose was to validate a false underlying narrative of religious persecution. We should recognize those types of decisions for what they really are: political acts intended to provide symbolic support for a deeply anti-democratic agenda.
The Christian nationalist narrative has a number of defining elements. First, the sense of victimhood is the engine of the plot: “We” are being persecuted. Justice Neil Gorsuch’s opinion on the New York City Covid case illustrates the point well. It doesn’t seem to have occurred to him that the alleged offenses against “religious freedom” in the New York safety regulations were unintended. He implies, without evidence, that they definitively emerged from a place of profound hostility to people of faith. “At least according to Governor Cuomo, it may be unsafe to go to church, but it is always fine to pick up another bottle of wine, shop for a new bike,” he opined, as if the regulations could not possibly be explained by something so benign as the obvious differences between a retail shop, where individual customers are unlikely to linger, and a church, where congregants gather in large numbers for extended periods of time.
Justice Samuel Alito engaged in the same histrionic grievances in his November 2020 speech before the Federalist Society, where he complained that religious freedom “is fast becoming a disfavored right.” He articulated with exquisite sensibility the pain and persecution wielded against those who are forced to “whisper” their disapproval of same-sex marriage “in the recesses of their homes,” while “if they repeat those views in public they will risk being labeled as bigots.”
The persecution narrative at the heart of Christian nationalism also requires a clear effort to identify just who are the “we” that are being persecuted. The Supreme Court advances this aspect of the narrative by being selective in deciding just whose fraudulent claims of “religious discrimination” it feels bound to hear. In the cases that survive the expensive journey up the judicial hierarchy, the victims whose “liberty” is under threat are typically people whose religion involves conservative or reactionary views. If your religion involves strong opinions about gender roles and hierarchies, then the Supreme Court conservatives feel your pain. On the other hand, if your religion calls for respecting the truths of the natural sciences, universal respect for all people regardless of their belief systems, a conviction that you are entitled to evidence-based, best-practice health care in maternal medical settings, and the rights of same-sex couples to get married—well then, you’re just not part of the “we” whose religious liberty is under threat.
Every story needs its bad guys, of course, and villains in the Christian nationalist story are not hard to spot. They are the same ones that populate the cases that the Supreme Court takes in its crusade for performative justice. They are the many avatars of the liberal Left: big government, “rabid secularists,” women in need of reproductive health services, and LGBT wedding celebrants. The cases that the court takes up exist to reinforce the narrative that “they” (the secular liberals, government overreachers, and so on) are persecuting “us.”
The function of “religious liberty” is not just to identify those religious groups and individuals that are worthy of special privileges but to name those groups within society that may count as legitimate, legally sanctioned objects of public contempt. State legislatures have gotten in on the action, too, with a new wave of “religious refusal” bills that would allow dangerously broad religious exemptions for health care providers. These measures, which include SB 239 in Arkansas, SB 323 in New Mexico, and SB 83 in Kentucky, would enable people with certain conservative religious beliefs to interfere with the right to access birth control, HPV testing and treatment, vaccination, counseling services, and many other forms of health care.
The happy conclusion of the story, at least as far as Christian nationalists are concerned, is not equality before the law but a state of privilege for members of their preferred religions that allows them to exempt themselves from those laws with which they disagree and to supply this kind of privilege as a religious right. The anti-constitutional nature of this privilege is so clear that even Justice Antonin Scalia could see it—at least when it was a nonpreferred religion that sought the privilege.
In the 1990 case Employment Division, Department of Human Resources of Oregon v. Smith, in which Native Americans presented their concerns about religious freedom, which involved the use of hallucinogenic substances, Scalia ruled that allowing a religious exemption to a law that applies equally to all “would open the prospect of constitutionally required exemptions from civic obligations of almost every conceivable kind,” making a mockery of the legal system. “To permit this would be to make the professed doctrines of religious belief superior to the law of the land, and in effect to permit every citizen to become a law unto himself,” he wrote. Today, Scalia’s descendants seem keen to ignore this counsel, recognizing that it stands in the way of granting their preferred religious groups a trump card to rewrite the law where it serves them.
But even as the court engages in these theatrics of performative justice, there are important and lasting changes to our nation’s legal mechanics being wrought. The legal precedents that will matter here are mostly about money—public money, and how to establish a system that would allow it to be funneled to the “right” religious groups.
This was seen in Espinoza v. Montana Department of Revenue, in which the court’s conservative bloc secured a right to public money for the funding of private religious education. Another serious and potentially damaging precedent may well be set in the upcoming Fulton v. City of Philadelphia. In that case, a private foster care agency that discriminates against same-sex couples is claiming that it is entitled to taxpayer funding. The theatrics that promote the narrative of anti-Christian persecution are a distraction from the true aim of this legal warfare: the establishment of a precedent whereby religious institutions of the correct variety are positioned to demand government money.
That the present Supreme Court appears to be using a smokescreen of seemingly lesser decisions to advance this larger political agenda will come as no surprise to those who recall the larger effort to promote and position the court’s newest members of its conservative majority. After all, two of its members (Justices Amy Coney Barrett and Neil Gorsuch) accepted seats acquired at the expense of disregard for the processes prescribed in the Constitution. A third (Justice Brett Kavanaugh) promised in the course of his confirmation to deliver partisan payback (“What goes around comes around” were his precise words). A fourth (Justice Alito) delivered a partisan rant to the Federalist Society, whose leader’s purpose, according to his former media relations director, is to stack the courts. A fifth (Justice Clarence Thomas) routinely appears at events with a distinctly political cast, as does his exceptionally partisan wife. This is the court that Christian nationalism built.
There is a tendency today to frame the debate over the separation of church and state in terms that are far too narrow. In these instances, a focus on the symbolic issues, such as crosses on public land and prayers in public meetings, can obscure the fact that the entire legal system may be turned into the arm of a political movement that has no actual interest in advancing the law. In America today, these assaults on the separation of church and state are in fact part of a larger attack on democracy and the rule of law itself. Religious nationalism is the kind of thing that takes democracies down.