Reorienting Jurisprudence to the Constitution and Repairing National Unity – Part 2

An earlier article reviewed the observations of Mark Rienzi, Professor of Law at the Catholic University of America and President of the Becket Fund for Religious Liberty, to the Institute for Human Ecology regarding conflicts in society exacerbated by the failure of the Supreme Court to reasonably interpret the constitutional liberalism the United States Constitution prescribes. In the second half of his presentation, Rienzi focused on the court’s new respect for religious freedom, and the justification for it.

Rienzi believes that the Supreme Court has “done quite well” in defending religious freedom over the past decade. He noted the wide variety of religious groups involved: “Muslims, Lutherans, Evangelicals, Jews, Catholics, Hindus, [and] Wiccans, among others.” There are also a wide variety of contexts: “schools, nursing homes, prisons, Abercrombie and Fitsch stores, town meetings, war memorials … synagogues, and more. In virtually all of them, the court has ruled in favor of the religious party or practice … For example some prisoners recently won stays of their execution to allow them to have the comfort of clergy. If the government’s going to put somebody to death, it ought to at the very least allow them the comfort of clergy.”

But on the other hand, he observed that “scholars and critics of the court have offered a variety of theories about this religious liberty winning streak.” It has been claimed that the court is trying to appease Christian conservatives, or use religious liberty “to harm innocent third parties,” or forging “a new church state landscape that is bad for civil rights, especially for the rights of women, LGBTQ individuals, and people of color.” But, Rienzi said, these claims ignore the different kinds of religious groups or individuals for which the court has ruled. “Many are women, many are non-Christian. Many are racial minorities. And they fail to account for the often super-majority support, often unanimous support for the winning parties.” Decisions protecting religious liberty have involved one or more members of the liberal wing of the court: Justices Breyer, Ginsburg, Sotomayor, and Kagan. This part of the court is unlikely to favor conservative Christians over groups favored by the Left.  A better explanation, Rienzi said, is the desire to impartially and universally apply constitutional guarantees of religious freedom. The court has acted to support religious freedom despite the country’s deep division, and even on issues that are highly controversial.

He gave two examples of this. In an abortion case, McCullen vs. Coakley (2014), the court for the first time supported pro-life advocates in a free speech case. He observed that Justice Anthony Kennedy said that the court was distorting decades of free speech jurisprudence if it did not begin protecting pro-life advocates on public property. The case involved sidewalk protesters speaking peacefully. The ACLU would not defend them, although it has defended Nazis. The case was decided 9-0 for pro-life demonstrators on a sidewalk. Rienzi said that “if you are a fan of free speech, you should be a fan of the McCullen decision.” Against the effort of Massachusetts trying to shut them down, “nine Supreme Court justices, even on a hot button case where you knew they disagree with one another, came out and said it [free speech] has to be protected.”

Secondly, “last term, in Fulton vs. City of Philadelphia, nine justices again agreed on a civil rights issue.” They agreed that the Catholic Church can run its adoption agency according to its own religious principles, not recommending children for same-sex couples, but only for married opposite sex couples. To do otherwise would have involved the agency inspecting the home of a same-sex couple, and recommending it “as a good place to raise kids.” They also cannot do this for unmarried opposite sex couples. Favorable evaluations in either case would clearly contradict Catholic teaching. Philadelphia had moved against Catholic Charities “without ever having a single gay couple complain.” Same-sex couples naturally turn to the 30 other adoption agencies in Philadelphia. Rienzi believes that apparently many same-sex couples recognize a right to disagree about sexual morality, and thus that the wider society is beginning to understand a right of disagreement. He said that “this is something to be heartened about.”

Also heartening is that the Supreme Court applied the Constitution against the almost unanimous opposition of the American establishment. Fulton vs. City of Philadelphia “was a hot-button case. Every big law firm, or just about every big law firm filed on behalf of the City of Philadelphia.” Besides these, “Google, Apple, Twitter, Facebook, all the big tech controllers of the universe filed briefs, as if they had things to say about foster care.” All these organizations told the Supreme Court to rule against religious liberty. But “nine justices held the line.” They don’t agree with one another about Catholic or Christian sexual morality, but they all agreed that a Catholic agency had the right to conduct itself according to Catholic precepts, and no one was penalized by working with Catholic Charities, but could keep fostering kids.

“And importantly,” Rienzi noted (and this writer would say this is the single most important comment from the Supreme Court in the text of the decision) “the nine justices, when they all agreed, also said that Catholic Charities wasn’t trying to impose its religious beliefs on anyone. And if you think about the critics of religious liberty, the opponents of religious liberty over the past decade, their favorite refrain is to say, well you’re just imposing your religious beliefs on somebody. Well, all nine justices said, ‘no they’re not.’” Instead there are thirty other agencies in Philadelphia that will provide children to same-sex couples. What the court had to deal with was a government “stamping out an agency that’s caring for children,” and the court telling Philadelphia “you should stop.”

Instead of favoring certain groups in its decisions, the court is defending religious liberty from attacks that are occurring in “illiberal times.” Groups such as the Little Sisters of the Poor are not being given new and special privileges; they are simply being allowed to function according to religious precepts as they always have – in the case for the Little Sisters, for the last 150 years. Only in the last few years did anyone think it was their responsibility to be involved in delivering contraception. “So the court is just enforcing those Bill of Rights protections as described in Barnette and as is their job,” Rienzi said.

Rienzi believes that all nine justices “are trying to send us an important message” that we must live lawfully and peacefully with disagreement. The justices by “broad majorities” have said in these recent religious freedom cases that “the religion clauses of the Constitution aim to foster a society in which people of all beliefs can live together harmoniously.” Or in the Bostock decision, which introduced transgenderism into employment law, but also said that ‘the guarantee of free exercise lies at the heart of our pluralistic society.” He noted that “Sharonelle Fulton being able to foster kids in Philadelphia actually doesn’t stop a single gay person from doing it too. It just means that people are allowed to live out their religious beliefs without being punished by the government. The justices – all of them, I think – really do understand that an important part of how we live with differences is enforcing and respecting the First Amendment.”

Thus, the court is not taking some sharp turn to the right, but simply defending the religious liberty Americans have always known against radical demands. Had the court accepted these demands, religious charities would have been stopped from serving the poor and needy because they served the public according to their religious precepts which were the very reason for their charity. The government (as the Obama Administration proposed), rather than religious groups would have been able to say who can and cannot lead and teach in those groups. But “nine justices rejected it.” The Supreme Court’s acceptance of the Left’s inclusivist demands against religious liberty would have consigned about half of America to a kind of internal exile. “Thankfully, our Constitution, and our court’s recent broad, unanimous willingness to enforce it even in culture war cases, helps us to live peacefully with those divisions, rather than having those divisions tear us apart.”

Rienzi warned, however, that the court’s recent support for religious liberty will depend on the public accepting its rulings. Its recent rulings “will mean nothing in the end, if the people develop a taste for authoritarianism, and give up on their commitment to living peacefully amid the disagreements that accompany our freedoms.” He invited his listeners to consider recent radically different past Presidents (presumably Obama and Trump) “with views that we think are evil, awful, and wrong.” Common dislike for bad government should point the public toward respect for liberty. “Our division should actually be, or can actually be, fuel for unity” in our country.

He urged us to remember the personal. We should take time to listen to people who disagree with our beliefs. He believes that partisans in the culture war are “mostly good people, they’re mostly honestly trying to do what they think is right in a complicated world. They are mostly not evil, not rubes, not racists, not anti-Catholic, not idiots. They just disagree with you. They, like us, are made in the image and likeness of a loving God.” He said that “demonization and ostracism” should be avoided. We should “choose love and listening, rather than hatred and silencing.”

In a question and answer session Rienzi was asked if it was allowable for the Supreme Court to decide cases based on natural law. This, of course, amounts to reading into the Constitution one own convictions, since natural law is not a document or documents that can be consulted, nor will all agree on exactly what it says. Rienzi said that it is fine for legislators to consult the natural law tradition in making laws, but courts should avoid it. In cases where Catholic or other committed Christian judges face decisions where the law requires them to make decisions contrary to their convictions, most would say that their faith requires them to be honest and live up to the oath they took in assuming office, which is to impartially apply the law. They believe that they have no religious obligation to override the law, Rienzi said.

He also reiterated that the Supreme Court’s abortion decisions were explicitly made “to tamp down on the controversy.” In fact, he said, it has exacerbated it. He went on to say that in a big country, where many government agencies attend to many people on many different matters, “it’s almost never the case that the government needs to force somebody to violate his or her religion.” People can disagree on these basic issues. He cited the Little Sisters of the Poor case to say that the government can easily provide contraception without involving nuns. We do not need to impose an answer to the question of whether contraception is good or bad on everyone. Grave material harm, such as human sacrifice or “driving the wrong way on the beltway,” is an exception, but otherwise, religious liberty should prevail.

Rienzi said that “with respect to religious liberty protections … I’ve always been fine with courts testing sincerity.” He said “courts test sincerity all the time.” While he believes that there are people who try to use religious liberty without being sincere, courts can see through this. He noted that in the Hobby Lobby case, or in cases of pharmacists not supplying abortifacients, the defendants are “choosing not to provide something that’s popular.” This indicates sincerity.

The Constitution as written can accommodate a broad range religions, opinions, politics, and interests over time and in a large country. It gives a framework for a basic public order, but does not prescribe a religious or cultural consensus. It does not authorize an unaccountable and unelected authority competent in a claimed correct doctrine to prescribe righteousness. Hopefully, Rienzi is correct that the court may be in the early stages of reconsidering its effort to impose a cultural consensus on the strength of its own conviction and like-minded parts of society.