Maybe next time the Supreme Court should heed that old advice about avoiding arguments over religion.
The high court term that ended last week was marked overall by an unusual amount of agreement. But a pair of religious-freedom cases was among a handful of issues that busted open the most familiar (and often lamented) ideological schism among the justices of the Roberts court — while inspiring some apocalyptic squabbling in their opinions.
What’s more, considered together, these two religion rulings can’t help but deepen an already widespread skepticism about what truly drives court rulings, at least on the most divisive disputes.
Are these judges — conservative or liberal — obediently following the logic of the law as they see it, setting aside their own social and philosophical views? Are they acting as umpires, to use Chief Justice John Roberts’ often cited analogy — calling the balls and strikes and not caring which side wins?
Or are the justices’ ingenious legal arguments mere rationalizations for decisions actually shaped by gut-level beliefs and biases? Are they first deciding the case, as it’s been put, and only later finding the law? Like deciding where the strike zone is only after the pitch has been thrown?
I believe judges do their best to neutrally apply the law. But sometimes one does wonder how good anyone’s best can be.
In the closely watched Hobby Lobby ruling that closed the court’s term last week, the Supreme Court’s five conservatives held that Obamacare’s so-called “contraceptive mandate” cannot be enforced against closely held corporations whose owners have a sincere religious objection to paying for insurance that covers certain kinds of birth control.
The court’s four liberals saw no religious right for individuals in those circumstances to be exempted from that government requirement.
Less than two months earlier, in Town of Greece vs. Galloway, the same five conservatives ruled in favor of a town board that begins its public meetings with a prayer, almost always a sectarian Christian prayer, despite the objections of some citizens.
And in that case the same four liberals argued that such official sectarian prayers constitute an impermissible government establishment of religion, violating the individual rights of attendees who adhere to a different faith, or none, and might be offended or feel excluded.
There are important differences between these cases, and legal complexities in each of them. What’s maybe most important to understand is that the Hobby Lobby dispute is governed not by the U.S. Constitution but by a federal statute enacted in 1993 expressly to overrule an earlier Supreme Court ruling. The court had said, in essence, that under the First Amendment religious objections give Americans no exemption from general laws. In the Religious Freedom Restoration Act, Congress gave them that right once again.
But acknowledging such legal complications, one simple pattern in the court’s recent religion cases is hard to miss.
In each case, the conservatives could be seen as ruling in favor of religion, and specifically in favor of conservative Christian sensibilities. Meanwhile, in both cases, the liberals could be seen as subordinating those religious interests to other concerns.
For the record, coincidence or not, all five conservative justices are male Roman Catholics, while three of the four liberals are Jewish (the fourth, Justice Sonia Sotomayor, is also Catholic) and three are women.
What leaves one wondering about the deepest source of these tangled conclusions is that it’s hard to see consistency, from either faction, when one thinks about these cases in terms more directly involving legal and constitutional principles.
All religious-freedom disputes are about drawing the line between the rights of individuals and the rights of the community, as exercised by its government. The Constitution guarantees individual Americans’ right to “free exercise” of their religion while also protecting them against having religion imposed through an “establishment of religion.” How broadly or narrowly one defines those protections has long left plenty of room for debate.
But between these two cases each court camp jumped from one side of the dividing line to the other. The conservatives protected individual freedom of conscience in Hobby Lobby, but sided with community values over individual sensitivities in Town of Greece. The liberals jumped exactly the other way, defending government-required birth control coverage (never mind religious objections) but decrying a government-led prayer that could bruise feelings.
One could easily imagine a neutral view of religious rights concluding that a brief prayer before a public meeting is no “establishment of religion” — and that a birth control insurance mandate is no infringement of “free exercise.” A more expansive (but equally consistent) view of religious freedom might readily see both the mandate and the prayer as violating private rights. But how easy is it to be confident that anything besides a basic favoritism toward religion’s claims — or a basic coolness toward them — fully explains the justices’ equal and opposite gymnastics in these rulings?
Unanimously, the conservatives think government prayer is fine while a government insurance mandate threatens basic freedoms. Meanwhile, the liberals, unanimously, have no problem with the government mandate but see a town meeting prayer as tyrannical.
It should be noted that the conservative majority was at pains to insist that both these rulings have limited consequences in other situations. Nothing in them, they wrote, would broadly authorize prayer in government proceedings or allow employers to, say, discriminate on religious grounds.
But the somewhat inscrutable logic of both Supreme Court camps — at least, when these rulings are set side by side — is unsettling.
No doubt most Americans have mainly gut reactions to disputes of this kind, and only later go looking for logical reasons (for just the right strike zone) to justify their conclusions.
But judges are supposed to be doing something different — something more disciplined and dispassionate, something less about taking sides.
It’s why we trust them to wield the awesome power they do.
D.J. Tice is at firstname.lastname@example.org.