Conservative Justices Suddenly Discover Limits to Religious Liberty

Far right "Christians" have pushed aggressively a false argument of "religious liberty" to justify their demands that they be granted special rights that exempt them from complying with non-discrimination and public accommodation laws. As these smoke screen arguments are made, all too often judges who hear lawsuits either challenging convictions of the laws themselves take claims of "deeply held religious beliefs" at face value and never look to see if such feigned beliefs are true and in line with the other actions and behavior of those claiming their religious liberty has been actually infringed.  This failure to look behind the claim of religious belief applies to the "conservative" justices on the U.S. Supreme Court who are inclined to bend over backwards to support the claims of Christofascists and far right evangelicals. One merely needs to make the claim of religious belief and it is treated as true and sacrosant.  A case before the Supreme Court is highlighting the hypocrisy of these justices and shows that therir deference to religious beliefs depends on who is making the claim and whether or not they are a member of the justices' preferred groups.  A piece in The Atlantic looks at this hypocriscy filled double standard.  Here are excerpts:

John Henry Ramirez is going to die. The state of Texas is going to kill him. The question that came before the Supreme Court this week is whether Dana Moore, his longtime pastor, will be able to lay hands on him as he dies.

Given the grand, even alarmed pronouncements about religious liberty made by the right-wing justices recently, you might think this would be an easy decision. But at the oral argument, several of the conservative justices suddenly became concerned about whether Ramirez is sincere in his religious beliefs, or whether he is simply, in the words of Justice Clarence Thomas, “gaming the system.”

Justice Samuel Alito shared his fear that approving Ramirez’s request might produce “an unending stream of variations” from other condemned prisoners seeking religious accommodations. . . . . Similarly, Justice Brett Kavanaugh worried that if the Court ruled in favor of Ramirez, “then there will be the next case after that and the next case after that where people are moving the goalposts on their claims in order to delay executions.”

I’ve heard a lot of slippery-slope arguments in my time, and I confess that the possibility that the condemned might experience a brief moment of comfort before death has to be among the least frightening I’ve ever encountered.

As Slate’s Mark Joseph Stern writes, the conservative justices’ novel concern with the potential that people might use their religious beliefs to get around the law is particularly jarring, given that these same justices have refused to consider that possibility in other cases. When the issue is businesses of public accommodation discriminating against customers on the basis of sexual orientation, or adoption, or contraception, or even vaccination, the conservative justices have refused to consider whether someone might seek a religious exemption in bad faith.

In the conservative commentariat, the mere suggestion that someone might do so is taken as evidence that conservative Christians are being persecuted. With any kind of exemption, there’s a chance that someone might try to claim one in bad faith. It’s not beyond the pale for the justices to consider that chance; it’s telling that they do so only under certain circumstances.

Many questions of religious liberty involve two parties who have reasonable claims that a decision one way or the other could violate their rights. Such cases are usually complex. But the extent to which certain justices take such questions seriously appears related to how politically sympathetic they are to a given party.

The justices who are so skeptical of Ramirez have not always been eager to question motives. In Ramos v. Louisiana, a case involving nonunanimous juries, Alito fumed at Justice Neil Gorsuch for pointing out that the history of such juries was tied up in an effort to “undermine African American participation on juries,” whining that the majority opinion, which held that the Sixth Amendment requires unanimous juries for conviction in criminal trials, reflected a modern discourse that “attempts to discredit an argument not by proving that it is unsound but by attacking the character or motives of the argument’s proponents.” That Louisiana’s 1898 constitution was a consciously racist document that successfully disenfranchised the state’s Black residents and purposely prevented them from serving on juries was apparently not germane, nor was the origin of Oregon’s similar law in an attempt to forestall “the influence of racial, ethnic, and religious minorities on Oregon juries.” Indeed, as Gorsuch wrote, “courts in both Louisiana and Oregon have frankly acknowledged that race was a motivating factor in the adoption of their States’ respective nonunanimity rules.” Alito’s reaction to the facts of the case was what you would expect from an obsessive Fox News watcher, rather than the apolitical jurist he claims to be.

Similarly, in 2019, the Trump administration sought to use the addition of a citizenship question to the census to effect a nationwide racial gerrymander, a decision that was quickly challenged in court by voting-rights groups.

Questioning the motives of Republican officials—but only Republican officials—is apparently impolite, especially when they are obviously lying.

From 2018 to 2020, “civility” in politics was a constant theme in conservative media. Such calls for civility were, as I wrote at the time, less a demand for a political discourse rooted in mutual respect than a demand for submission to those currently in power. That the conservative justices would have the same political preoccupations as Fox News is not at all surprising. By the same token, however, the public is not obligated to humor the justices’ insistence on being seen as apolitical actors while they wage partisan culture wars from the bench.

These justices now echo the refrain that we should not question other people’s motives, that to do so is uncivil and undignified—except when they feel like doing it. As the record shows, holding motives above question is not a standard these justices adhere to; it’s just one they demand of others. You might ask whether it’s one they really believe in.