President Donald Trump continued his assault on church-state separation tonight with his third nominee to the U.S. Supreme Court – Amy Coney Barrett, 48, who has served as a judge for less than three years (Trump appointed her to the 7th U.S. Circuit Court of Appeals in 2017).
From Barrett’s short time on the bench and her writings and professional affiliations, it’s clear that she will follow in the path of Trump’s two other Supreme Court appointees and support their efforts to undermine the separation of religion and government and to allow religious freedom to be misused as a sword to harm others, rather than as a shield to protect people.
Americans United strongly opposes Barrett’s nomination. With the presidential election already underway, the American people should decide who succeeds Justice Ruth Bader Ginsburg – a staunch advocate for religious freedom and equality for all. The Senate should not consider Justice Ginsburg’s successor until the people have spoken and the next presidential term has begun. Religious freedom for all Americans hangs in the balance.
Republicans are falsely claiming that opposition to Barrett is based on her religious views and personal affiliations. But a nominee's religious beliefs are not relevant; her record on church-state separation is. And Barrett’s record isn’t good:
Religious Freedom Means Do No Harm: The Constitution forbids our government from granting religious exemptions that would harm others. As Ginsburg herself has quoted, “[y]our right to swing your arms ends just where the other man’s nose begins.” Barrett’s record indicates that she does not respect this “do no harm” principle and is willing to grant religious exemptions that put our civil rights, health care access and religious freedom at risk, particularly for women, LGBTQ people, religious minorities and the nonreligious.
For example, the Affordable Care Act ensures workers have access to no-cost birth control through their health insurance plans. But Barrett believes employers should be able to claim religious objections to deny coverage, even if it means workers won’t be able to afford vital reproductive health care; she signed a letter prepared by the Becket Fund for Religious Liberty arguing this. She has also served as a presenter for a training program of the Alliance Defending Freedom, which – like Becket – is a legal group that frequently sues for harmful religious exemptions to our shared secular laws. And just this month Barrett joined an opinion that allows Illinois to exempt religious services from limits on large gatherings imposed by an emergency public health order meant to protect people from COVID-19.
Religious Freedom For Public Schoolchildren: Public schools must be inclusive spaces that welcome all children, regardless of their religious beliefs. That’s why the U.S. Supreme Court for more than a half-century has protected students’ religious freedom by preventing public schools from sponsoring prayer, promoting religion or coercing students to participate in religious activities. Yet in 2017 Barrett praised the view of the late Justice Antonin Scalia (for whom she clerked) that a landmark Supreme Court decision prohibiting prayers at public school graduations was wrongly decided.
Religious Freedom For Taxpayers: That no one should be forced to pay for or support someone else’s religion is a fundamental component of religious freedom as envisioned by America’s founders. To enforce this constitutional protection, taxpayers can challenge the government in court. But in August, Barrett wrote an opinion that was hostile to the rights of taxpayers to sue, and she previously praised Scalia’s criticism of those rights – suggesting that she could vote to overturn precedents that give taxpayers standing to challenge religious-freedom violations.
Indeed, Barrett has written extensively about her belief that Supreme Court justices should not be bound by legal precedent when deciding constitutional questions. One of the precedents she views as open to reconsideration is the Supreme Court’s “Lemon Test” for determining if a church-state violation has occurred. For nearly 50 years courts have relied on this test, under which a government action is unconstitutional if it has the primary purpose or effect of advancing religion or excessively entangles government with religion.
Reproductive Freedom and LGBTQ Rights: Religious freedom protects everyone’s right to choose what we believe about religion, who we love, and what we do with our own bodies. But Barrett has demonstrated hostility to both reproductive freedom and LGBTQ rights. She has three times dealt with cases involving abortion, twice voting in favor of or signaling support for draconian abortion regulations, and once suggesting that Supreme Court precedent permitting states to limit anti-choice protesters’ ability to block clinic entryways should be overturned. These opinions, combined with an article she wrote suggesting that Roe v. Wade is not a fundamental precedent that should be immune from being overturned, and her willingness to support religious exemptions that deny access to birth control, demonstrate that reproductive rights are at stake.
Barrett has also misgendered transgender people; said that Title IX, which prohibits sex discrimination in public schools and colleges, should not protect transgender people; and defended the dissenting justices in the Supreme Court’s landmark marriage equality case, Obergefell v. Hodges. ADF, for whom she presented at a training program, is widely viewed as an anti-LGBTQ organization. Her statements, professional involvements and willingness to use religion to discriminate demonstrate that she will undermine the rights of LGBTQ people.
The Senate should not confirm a Supreme Court justice until after the presidential inauguration in January. And even then, the Senate should not confirm Amy Coney Barrett – she’s a threat to church-state separation, which protects religious freedom for all of us.