My Turn: Death by a thousand cuts — When religious protections are hijacked by extremists

The Supreme Court of the United States is seen in Washington, March 26, 2024.

The Supreme Court of the United States is seen in Washington, March 26, 2024. AP PHOTO/AMANDA ANDRADE-RHOADES


Published: 06-03-2024 4:06 PM


The reliance of at least one Alabama Supreme Court Judge on biblical justification for the recent ruling on in vitro fertilization and the status of frozen embryos is yet another challenge to the Establishment Clause of the First Amendment to the U.S. Constitution.

The framers of the Constitution knew all too well what dangers lurk behind the blurring of lines between faith and politics. After all, avoiding religious persecution was a central motivation behind the movement of Europeans to the Western Hemisphere, and a number of colonies (e.g., Pennsylvania, Rhode Island, Maryland, Virginia) had moved toward religious tolerance by the time of the Congressional Congress.

No less a figure than Thomas Jefferson wanted to balance the free exercise of religion with limits on the ability of civil authorities to impose any one faith on citizens. The solution was to assert a constitutional right to religious practice (the Free Exercise Clause) while also constraining state and federal authorities from promoting one faith over others (the Establishment Clause).

There is a long history of legal cases testing the limits of constitutional protections for religious beliefs and practices over matters as diverse as conscientious objections to military service and the sacramental use of peyote in Native American religion. Over the past decades, courts and legislatures have eroded the protections of the Establishment Clause in the name of accommodating religious beliefs and practices.

In 1993, President Bill Clinton signed the “Religious Freedom Restoration Act” (RFRA, Pub. L. No. 103-141, 107 Stat 1488), which limited the government from any infringement on the exercise of religion unless it could demonstrate that its action furthered a compelling governmental interest and that no less restrictive means to that end was available. In the highly contentious Hobby Lobby decision (Burwell v. Hobby Lobby Stores Inc., 2014), the Supreme Court granted a “closely held” for-profit corporation operated by Christians an exemption from the “contraception mandate” in the Affordable Care Act (2010) based on the standard set by RFRA.

There have also been numerous other regulatory exceptions related to religious institutions (e.g., day-care centers) as well as special treatment in zoning and taxation decisions for the construction of faith-related facilities. Numerous states have passed local versions of the federal RFRA law to guarantee it will apply in their jurisdictions.

The Establishment Clause, if properly read, is actually critical to the Free Exercise Clause since the freedom to worship is contingent on not being subject to faith practices and beliefs to which individuals may not be devoted. However, when the Free Exercise Clause is used to justify an ever-expanding number of broad exceptions to the application of the Establishment Clause, then the intended balance between the two is threatened.

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For example, when the Supreme Court allowed Hobby Lobby to avoid the mandate to provide contraception coverage it limited the availability of birth control measures for all the corporation’s employees, whether or not they shared the faith of corporate owners. As noted in Justice Ruth Bader Ginsburg’s dissent, the court may have protected the “free exercise” of the corporate leaders, but in doing so they also infringed on the religious freedom of any employee who might not share the religious beliefs of their bosses.

The Supreme Court thus promoted one faith over others and, in my view, violated the Establishment Clause.

It is not only by opening the floodgates to religious-based exceptions that the Supreme Court has diminished the power of the Establishment Clause. Most notably, the conservative majority of justices advanced a Christian interpretation of pregnancy in reversing the 50-year-old precedent of Roe v Wade.

The Dobbs decision, written by Justice Samuel Alito, attempts to disguise a religious objection to abortion with questionable constitutional and historical arguments. Linda Greenhouse made this argument in a New York Times opinion piece (July 22, 2022): “It was not constitutional analysis but religious doctrine that drove the opposition to Roe.” The overt reference to biblical doctrine in the Alabama decision merely said out loud what has been at the heart of Supreme Court decisions ever since Republican-appointed justices gained the majority, namely that a particular version of Christianity has special privilege in our justice system.

The cumulative impact of legislative and judicial decisions that impose one religion’s doctrine on the public as a whole is profound. Despite a solid majority of Americans favoring a woman’s right to make reproductive choices without legal interference, the Dobbs decision authorized states with male-dominated and conservative legislatures to criminalize involvement in abortion services, often without exception for cases of rape, incest or threats to the woman’s health.

The court’s willingness to exempt religious organizations — almost always Christian — from state and federal laws has diverted funds from public to parochial schools, subjected workers to restrictions on health services when corporations claim religious objections, invited religious-based censorship of library books, and encouraged intolerance toward non-Christian faiths.

Many, mostly southern, states have sought to obliterate limits on state sponsorship of Christianity. Louisiana’s legislature just passed a bill that, if signed by the governor, will require all public schools and publicly financed colleges/universities to post the Ten Commandments in every classroom. The attack on constitutional protections from governmental promotion of a single religion has also energized the Christian Nationalism movement that is often embraced by violent extremists who blend religious and racist hate ideologies.

In short, eviscerating the Establishment Clause comes with an unacceptably high price tag for our democracy.

Donald Joralemon, emeritus professor at Smith College, lives in Conway.