But Doesn’t Religion Always Win Out at the Court?

The ruling against New York and California are of a piece with the Supreme Court's showing marked deference in past cases to those bringing religious complaints. Both before and after the turnover brought about by the retirement of Anthony Kennedy and the deaths of Antonin Scalia and Ruth Bader Ginsburg, five of the conservative justices were and still are Catholic, with the sixth conservative — Neil Gorsuch — a Protestant educated in Catholic schools. Andrew Cuomo, New York's third-term Democratic governor and himself a Catholic, said after the Court struck down his limits on public assembly, inevitably worsening the spread and death rate in his state, “We know who [Trump] appointed to the court. We know their ideology.”

When the matter taken up by the court is religious, the outcome has consistently favored the religious claim, with no regard paid to the affect on those ruled against. The conservative justices have likely brought to the Court a prejudice that those who are religious are more worthy of a respect that is certainly not owed to the growing 20% to 30% in the country who have no church or synagogue affiliation, with atheism on the rise.

A pair of litigants brought a case in 2014 against the town council of Greece, in upstate New York, which always began its meetings with a prayer, and always a prayer infused with Christian liturgical references. We covered Greece v. Galloway in "Is the Supreme Court Establishing a Christian Nation?". We made the point that, "To steer clear of government ever proclaiming a national religion", as proscribed in the First Amendment to the Constitution, "keeping church apart from state has been the least complicated and successful remedy". But here, clearly, was religion stepping out of its place and advancing onto the town square.

The Court approved of prayer to open a meeting nonetheless because, as Justice Kennedy wrote in his majority opinion, invoking God is a tradition that goes back to the Continental Congress and it "invites lawmakers to reflect upon shared ideals and common ends before they embark on the fractious business of governing”. Justice Samuel Alito wrote in a concurring opinion that Christian references should not be objectionable — such as “in the name of the Lord and Savior Jesus Christ, who lives with you and the Holy Spirit” and “we acknowledge the saving sacrifice of Jesus Christ on the cross” that dissenting Justice Elena Kagan collected from the town's meetings — because only 3% of the town is Jewish. Does not a Court ruling apply to all the town councils in America, and are all towns only 3% Jewish?

The same year also brought the Court's decision in the landmark Burwell v. Hobby Lobby Stores case covered here in "Do Corporations Have Religious Rights?" and "Corporations Are Now Persons With Religious Sensibilities, Says Supreme Court".

The company is a chain of arts-and-crafts stores based in Oklahoma City owned by the Green family, who objected its having to pay for employee insurance plans under the Affordable Care Act that included coverage for contraceptives and abortifacients. So when the Green family, who describe themselves as highly religious, came before the Court, they were met with justices predisposed to help. Owner David Green said, “I could live the way I do with ten stores. So why do we want 500 stores? So we can tell more people about Christ”.

The owners are of course free not to use contraceptives but they wished to impose their own religious beliefs on the company’s 30,000 employees.

The suit was brought by a coalition of companies with Hobby Lobby the largest. It was the corporations that would have to pay for the insurance, and therefore only the corporations could bring the complaint. That meant the religious beliefs of the families had to be transfused into the corporations so that the corporations could say their religious sensitivities had been offended. Unbelievably, the Court accommodated. This expanded their ruling in Citizens United that corporations are “persons” and should have many of the same rights as their human counterparts.

The justices needed law for this special dispensation and relied on 1993’s Religious Freedom Restoration Act (or RFRA, spoken of as “Rifra”). FRFA says that a government action “shall not substantially burden a person’s exercise of religion” unless it is “the least restrictive means of furthering a compelling government interest”. In its ruling in favor of the Greens and their company, the justices were saying that it was they few who were burdened by the ACA's offence to their religious notions, not the women among the 30,000 employees who were deprived of the insurance benefit.

By the way, the Green family was in subsequent years caught having bought thousands of religious artifacts smuggled out of Iraq via the United Arab Emirates and Israel back in 2010 and 2011 for their Museum of the Bible. A 2017 settlement with the Eastern District of New York fined the company but kept the Green name out of the case name which was The United States of America v. Approximately Four Hundred Fifty (450) Ancient Cuneiform Tablets; and Approximately Three Thousand (3,000) Ancient-Clay Bullae. As we say, deference is always paid to the religious in the U.S. justice system.

The Supreme Court in 2016 heard seven petitions clustered under Zubik v. Burwel arguing, as in Hobby Lobby, that employers should not be required against their religious principles to facilitate even indirectly contraception for their employees as required by the insurance plans of the Affordable Care Act (ACA). Leading the suit was Little Sisters of the Poor, Catholic nuns who care for the aged, a story which we covered in "Religious Exemption Cases Come Out of the Woodwork".

The Obama administration had arranged a carve out whereby religious objectors could simply make that known on a government form and provide the name of their insurer. Health and Human Services would then connect directly with the insurer to make arrangements for contraceptive coverage for the organization’s employees.

Four appeals courts ruled against the religious groups, finding the government accommodation reasonable. The Little Sisters and co-plaintiffs would be entirely removed from the process, exempted from paying for it, unsullied by what a Wall Street Journal op-ed called the “evil acts” of preventing conception.

The mid-country U.S. Court of Appeals for the Eighth Circuit disagreed with the other appeals courts, sending Little Sisters and companion cases to the Supreme Court. Here again 1993’s Religious Freedom Restoration Act was involved, cited as its rationale by the Eighth Circuit. It found that filling out a form is overly burdensome. The plaintiffs argued that simply by informing the government of their insurer, they would be “complicit” in “facilitating” their employees to obtain a benefit available to all other women under Obamacare. The question is, or ought to be, shouldn’t religious freedom end where it affects the freedom from religion of others?

The case stalled in a 4-to-4 vote when Justice Scalia's death left the ninth seat empty, but in July of this year, the Catholic wing of the Supreme Court unsurprisingly decided in Little Sisters' favor, allowing the Department of Health and Human Services to exempt Little Sisters from providing contraceptive drugs in their employee health plans as required by the ACA.

The Religious Freedom Restoration Act should work both ways. Mightn't a "compelling government interest" not be overly burdensome? That would amount to a waiver of the strict application of the "free exercise" clause" of the Constitution and yet the Court shows no objection to RFRA. We here see acceptance of its use by the Eighth Circuit. So why in the New York cases was there no consideration that there might be that "compelling government interest" in combating the worst pandemic in a century by curbing close assembly of large numbers of people? The burden of foregoing religious gatherings and communal rituals should be considered as nowhere so burdensome as adding to suffering and death from spreading disease.