- Town of Greece v. Galloway, 572 U.S. ___ (2014): Local government can start public meetings with sectarian prayers.
- Burwell v. Hobby Lobby Stores, 573 U.S. ___ (2014): For-profit corporations can hold religious beliefs, and use them to gain an exemption from a law requiring them to provide insurance covering contraception to their employees.
- Trinity Lutheran Church of Columbia Inc. v. Missouri, 582 U.S. ___ (2017): Despite a clear provision in the state constitution, a church is entitled to tax payer money to resurface a child’s play area.
- Masterpiece Cakeshop, Ltd. v. Colorado Civil Rights Commission, 584 U.S. ___ (2018): Innocuous statements by a public official are labelled as signs of animus towards religion, overturning a finding that a private business broke the law by refusing service to LGBT customers.
It’s been a pretty tough time to be a lawyer in the secular movement. The Supreme Court has given us a string of decisions where religion is privileged in what we see as clear violations of the Establishment Clause of the First Amendment. We have come to expect it, especially with the appointment by this regime of Neil Gorsuch and Brett Kavanaugh, two jurists known through their careers for their willingness to expand the preference given to religious belief. As a movement, we’ve rethought our legal strategy in light of an increasingly hostile federal court system. But last Thursday, the Supreme Court took a giant leap further, one none of us expected and which even after a weekend of contemplation we find next to impossible to believe.
Up until Thursday, the preference shown by the Supreme Court has been to religion in general. For example, in Holt v. Hobbs, 574 U.S. ___ (2015), a Muslim prisoner in Arkansas won the right to wear a religiously required beard against prison policy in a unanimous decision. Where our government showed overt and deliberate preference towards Christianity, it came from the legislative and executive branches. The Department of Health and Human Services granted an exemption to a South Carolina adoption agency to continue receiving taxpayer funding despite refusing to place children in Jewish or atheist households. State governments across the country under the auspices of Project Blitz are passing laws designed to impose a particular view of Christianity upon the nation.
But on Thursday, that all changed. The Supreme Court, in a 5-4 decision in Dunn v. Ray, took an overt and unmistakable step towards the endorsement of Christian Nationalism – the notion that the United States was founded, and remains, a Christian nation, where Christianity should be written into the laws, and receive legal benefits over and above those on offer to other religions. This idea has absolutely no basis in history, and I wholeheartedly recommend that you pre-order the book, The Founding Myth, by my friend and colleague over at FFRF, Andrew Siedel, in which he demolishes the arguments made in its favor. But myth though it may be, Christian Nationalism is out there, and is now infecting the Supreme Court itself.
In Dunn, Justices Thomas, Alito, Gorsuch, Kavanaugh, and Chief Justice Roberts allowed the execution of a man in Alabama to proceed on schedule. That man, a Muslim, is now dead. He was strapped to a gurney, and injected with poisons which stopped his heart. His legal claim, though, was not a claim of innocence. Ray was convicted of a heinous crime, the rape and murder of a fifteen year old girl, Tiffany Harville. Whether you agree with the use of the death penalty or not (and I don’t), Dunn’s crime was horrific, and worthy of severe punishment. But Dunn was not requesting the overturning of his sentence. Instead, he was requesting the right to have his spiritual advisor present with him in the last moments of his life.
This basic right to a moment of solace in face of death is one granted by Alabama law, but apparently now one granted to Christians alone. And in this decision, 5 Christian men on the Supreme Court decided that this right did not extend to Muslims. It’s no surprise that the three members of the Court who are from minority religions, Justices Ginsburg, Kagan, and Breyer, all Jewish, found the decision outrageous. While the right wing majority based their decision on the “last minute” nature of Dunn’s request, this is a transparently false attempt at justification. Dunn’s request for the presence of an imam was denied on January 23. He filed his challenge on January 28, a mere 5 days later.
The greater the importance of a right, the greater the state’s interest must be to be permitted to override it. That’s fundamental, black letter, constitutional law. Where a right is as basic and important as freedom of religion, the burden for the government is high indeed. Yet here, the supposed right of the state of Alabama to kill a man on an arbitrary schedule (did, perhaps the prison officials have dinner plans or even tickets to Hamilton they just couldn’t put off?) was held to be more important than the religious needs of the man they were to kill.
I’m not asking you to feel sympathy for a man who raped and murdered a child. I’m asking you to be outraged by a Supreme Court blatantly and publicly stating that only Christianity matters. This decision spells disaster for minority religious believers and non-believers alike. Our heartfelt beliefs, our core values, are without value to the majority of this Court. Where exemptions are granted, it will be to Christians. Their beliefs are important enough to the right wing majority that they warrant protection. The equally strongly held moral values of Muslims, or Hindus, or Jews, or atheists are to be dismissed if they cause even the slightest inconvenience to the state.
We knew we were facing a tough battle with this Supreme Court. We had no clue just how hard it would become so quickly.