The Supreme Court made a decision to overturn New York State’s limits on religious gatherings during the COVID-19 outbreak, setting the stage for what will likely become one of the coming decade’s defining collisions between law and demography.
The ruling continued the conservative majority’s sustained drive to provide religious organizations more leeway to claim exemptions from civil laws on the grounds of protecting “religious liberty.” These cases have become a top priority for conservative religious groups, usually led by Christians and sometimes joined by other religiously traditional denominations. In this case, Orthodox Jewish synagogues allied with the Roman Catholic Diocese of Brooklyn to oppose New York’s restrictions on religious services.
But this legal offensive, elevating religious liberty over other civic goals is coming even as the share of Americans who subscribe to no religious faith is steadily rising, and as Christians have fallen to a minority share of the population.
That contrast increases the likelihood of a court majority sympathetic to the most conservative religious denominations colliding with the priorities of a society growing both more secular and more religiously diverse, especially among younger generations.
While most conservative analysts have cheered the court’s move in this area, centrist and liberal critics see the ingredients for a political explosion as the court backs religious-liberty exemptions to laws on employee rights, health care, education, and equal treatment for the LGBTQ community.
Indeed, the succession of recent religious liberty rulings by the conservative court majority may represent another manifestation of the fear of cultural and religious displacement that helped amass huge margins among Christian voters.
In all these ways, religious liberty seems certain to become an even more crucial battlefield as the political cold war grinds on between a Republican coalition that mostly reflects what America has been and a Democratic coalition centered on what it is becoming.
The Supreme Court’s recent religious liberty rulings include a 2014 decision allowing the Hobby Lobby company to claim an exemption from the Affordable Care Act’s mandate to provide birth control to employees and a 2018 decision in which the Court sided with a Colorado baker who refused to provide a wedding cake for a same-sex couple.
In oral arguments on a case heard early last month, the Court’s conservative majority signaled that it is highly likely to rule that the city of Philadelphia cannot deny contracts to a Catholic social-service agency that refuses to certify same-sex or unmarried couples as prospective foster parents.
The pace of these cases has increased precisely as social and demographic changes have reduced Christians to a minority and created the most pluralistic religious landscape in American history.
Americans who identified as Christians made up a majority of the nation’s population for most of its history. About two-thirds of the adult population as recently as the late 1990s. But sometime between 2010 and 2012, Christians, for the first time, fell below majority status. Their ranks have continued to shrink since. The latest data from the Pew Research Center puts Christians at just above 40 percent of the population.
Given younger generations’ religious preferences, the unmistakable trend line is that Christians will continue to shrink as a share of society, while the share of Americans who don’t subscribe to any religious faith will grow. According to the nonpartisan Public Religion Research Institute’s latest findings, among adults younger than 30, 36 percent don’t subscribe to any religious faith, and another 6 percent belong to a non-Christian religion; Christians account for less than three in 10 of this group.
As Christians have receded in the population, political and religious conservatives are consolidating behind the claim that believers face widespread discrimination. In the latest PRRI American Values Survey, more Republicans said that Christians face a lot of discrimination than believed. Evangelical Christians, the religious foundation of the electoral coalition, were even more likely to say that Christians face significant discrimination, 66 percent.
Most troubling for progressive legal activists is evidence that those sentiments are seeping from the political arena into the arguments of the Supreme Court’s conservative majority.
In his concurring opinion in the New York case, Neil Gorsuch, denounced the state’s limits in unusually confrontational and barbed language. Ignoring public-health arguments that indoor religious gatherings pose unique COVID-19 risks. Gorsuch portrayed New York’s rules as reflecting a singular disdain for religious devotion.
“At least according to the Governor, it may be unsafe to go to church, but it is always fine to pick up another bottle of wine, shop for a new bike, or spend the afternoon exploring your distal points and meridians,” Gorsuch wrote. “The only explanation for treating religious places differently seems to be a judgment that what happens there just isn’t as ‘essential’ as what happens in secular spaces.”
Gorsuch’s language in the New York case echoed an unusually antagonistic recent speech from Justice Samuel Alito to the conservative Federalist Society. In that address, Alito also portrayed religious believers as under siege from an increasingly secular society. “Religious liberty,” Alito insisted, “is fast becoming a disfavored right.”
Brett Kavanaugh, expressed similar deference to religious-liberty arguments at his confirmation hearings. Jenny Pizer, senior counsel for Lambda Legal, which focuses on cases involving gay rights, spoke for many critics when she stated the justices’ rhetoric was tinged with “a Christian religious victim narrative that we’ve been hearing amplified for one decade, two decades now.”
The partisan re-sorting of the nation’s religious landscape seems certain to generate more cases that heighten the tension. Almost two-thirds of Republicans identify as Christians, a level last reached in American society overall in the late 1990’s. Democrats, by contrast, are divided in half between Christians, and nonreligious. Similarly, the network election exit polls this year found that while Christians still provided two-thirds of Republican votes, Democrats garnered a bigger bloc of support from nonreligious Americans.
With this electoral realignment as the backdrop, the Democratic Party has grown more assertive in challenging religious-liberty defenses against other civic rights, even as Republicans have grown more adamant in embracing them.
In 1993, the Democratic-controlled Congress passed the Religious Freedom Restoration Act, which provided religious institutions more leeway to resist governmental mandates. It followed a landmark 1990 Supreme Court decision, Employment Division vs. Smith, written by the conservative icon Antonin Scalia, that restricted religious-liberty defenses. The Court majority has relied on the RFRA law in some of its recent decisions, and Gorsuch in the New York coronavirus case referred to it “as a kind of super statute, displacing the normal operation of other federal laws.”
But Democrats appear eager to retrench the statute. When House Democrats passed their sweeping 2019 Equality Act, which would ban discrimination because of sexual orientation or gender identity in employment, housing, and other arenas, they specifically barred the use of RFRA as a defense against its requirements. During the campaign, Democrats pledged to roll back the use of religious defenses against equal treatment for LGBTQ Americans, and the incoming vice president-elect, has introduced legislation to more comprehensively curb the law’s impact.
Simultaneously, the movement from the Supreme Court’s Republican appointees is in exactly the opposite direction toward widening religious protections and exemptions in decisions that rely on the RFRA law or the First Amendment’s protection of religion, or both. Some conservatives are hopeful that the court eventually will undo even the 1990 Scalia decision, and vastly widen the opportunities for groups to claim religious exemptions from civil laws.
Like other Supreme Court battles that I’ve written about, this one too will be of magnitude that should be observed by all Christians and other religious demographics.