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Religious freedom, but not for all

It’s apparently too much to ask the Supreme Court to ‘play in the joints’

Pro-abortion rights activists demonstrate near an anti-abortion rights group outside of the U.S. Supreme Court Building on June 21, 2022 in Washington, DC.Anna Moneymaker/Getty

The flurry of activity from the U.S. Supreme Court in the final weeks of its term included two cases in which the justices, in taking on the tension between Americans’ freedom from the establishment of religion by the government and their freedom to exercise their religious views, sided squarely with the latter.

On the surface, it may seem that — putting aside for a moment the importance of the Establishment Clause and the dangers posed by the court weakening it — the expansion of the Free Exercise clause is good news for all of the nation’s most faithful. But a closer look at this court’s history, and its current jurisprudential and ideological trajectory, tells a different story.

“There is a narrowly drawn application of who it is who has privilege as it relates to free exercise,” says Teresa L. Smallwood, a professor of public theology at United Lutheran Seminary.

The two cases — one involving a public-school football coach who openly prayed on the field after games and the other a Maine publicly funded tuition assistance program that excluded religious schools — gave the court’s conservative majority the opportunity to expand the constitutional protection for religious exercise even when the government objects due to its requirement to separate church from state.

‘When it comes to freedom to exercise our faith, the court has continued to make clear that it picks the winners and losers.’

In both cases, the court put aside what I learned in law school about how conflicting constitutional interests should be handled: with a search for compromise designed to respect the rights of all. It’s called “play in the joints” — the idea that not every imposition by the government on religious freedom is a constitutional violation, particularly when the government’s action is supported by a strong public policy interest.

But even before the court’s recent rulings took all the play out of those joints in a pro-religion bent — the clearest example being the court siding with religious groups’ efforts to flout pandemic mitigation rules — it was clear that religious freedom is not for everybody.

“The ethos that operated for ‘We, the people’ and never included those who were enslaved — that same ethos operates today,” says Smallwood, who is also an attorney and whose scholarship focuses on issues including gender, racial justice, and ethics.

The court’s three justices nominated by former President Donald Trump, whose campaign promise to appoint conservative justices solidified his White evangelical support, serve as the backbone of the court’s current 6-3 majority. That majority’s attack on the Establishment Clause, its evisceration of the right of women and child-bearing people to control their bodily autonomy, and its signal that other rights from marriage choice to contraception are imperiled sends a stark message: When it comes to religious protections, not all religions are treated the same.

Wearing an anti-abortion T-shirt, a father and his sons pray, as abortion-rights supporters protest outside of the Supreme Court, Wednesday, June 29, 2022, in Washington.Jacquelyn Martin/Associated Press

Smallwood says, “What we have now is a carefully crafted, and carefully curated, Supreme Court capable of operating with the finesse of legal jargon in a fashion that now makes it look as though what we are doing is just opening the door wider for people to appreciate their religious conventions and sensibilities. In fact, what they are doing is carving out a very narrow way for a bureaucratic government to rise up and to have its own chosen way of appreciating religious freedom.”

Take the overturning of Roe v. Wade, opening the door for states to, if they wish, outlaw abortion from the moment of conception, the point at which those on the religious right define it. What of Islam, Judaism, and other faiths that do not define it at that point? What of those who are agnostic or of no faith at all? Didn’t our nation’s founders say Americans are “endowed by their Creator with certain unalienable Rights,” including liberty?

When it comes to freedom to exercise our faith, the court has continued to make clear that it picks the winners and losers. For example, same-sex couples who wish to celebrate the sacrament of marriage in the way they see fit, or to expand their families through adoption in the most pro-life tradition, have been thwarted by those who use religion in the name of discrimination. And they have had the court’s blessing.

“I don’t believe at all it would apply equally to people seeking those same kinds of conventions within even the Black church or as LGBTQ people, because let’s face it: It is a very religious act to marry,” Smallwood says. “And if I choose to have a bunch of cupcakes or a wedding cake, it is not less religious. Just as I, as an out lesbian, would want to engage in the covenant practice of marriage, I too am practicing religion. And so the court has not only expanded the use, but they have weaponized the idea of freedom of religion so we have a particular application of that freedom — the same as ‘We, the people.’”


Kimberly Atkins Stohr is a columnist for the Globe and The Emancipator. She may be reached at kimberly.atkinsstohr@globe.com. Follow her on Twitter @KimberlyEAtkins.