November 2020 Church & State Magazine | Featured

Republican members of the Senate Judiciary Committee spent several days last month insisting that Supreme Court nominee Amy Coney Barrett was under fire for her conservative Catho­lic beliefs.  

There was just one problem: No one was attacking Barrett’s faith. During the Oct. 12-15 hearings, Demo-crats focused on how Barrett’s appointment to the court might affect the Affordable Care Act and raised the possibility of millions of Americans­ losing access to health insurance. They brought up other issues, too, such as access to legal abortion, religious freedom, campaign finance, voting rights and others. Nary a word was said about her religion.  

There’s a reason Republicans were eager to shift the debate from Barrett’s record to her religion: Her record is alarming. By claiming she was the victim of religious bias, the GOP hoped to keep the focus away from things she has said and done as a federal judge.  

But Barrett, who will occupy the seat held by the late Justice Ruth Ba­der Ginsburg, has been a federal appeals court judge since 2017 and has a record – one that’s not easy to cover up. Research by Americans United uncovered the following troubling information:  

•Barrett joined a decision of the 7th  U.S. Circuit Court of Appeals allowing Illinois to exempt religious services from its emergency health order to protect people from the spread of COVID-19.   

•Barrett signed on to a letter from the Becket Fund, a right-wing legal group, insisting that employers have a religious freedom right to fully deny their employees contraceptive coverage. The Becket Fund is a legal organization that opposes church-state separation and was behind the Hobby Lobby and Little Sisters of the Poor lawsuits asserting that employers can discriminate against workers based on religious beliefs.  

•Barrett helped train lawyers with Alliance Defending Freedom (ADF), a Religious Right legal organization that has been at the forefront of attempts to misuse religious freedom to roll back LGBTQ and reproductive rights, and is hostile to the principle of church-state separation.  

•In a recent law-review article, Barrett disagreed with a pivotal church-state case that protects the religious freedom of public school students and their families by ensuring that they are not forced to participate in prayers at high school graduations.

Barrett’s nomination began with controversy, since many Democrats argued that President Donald Trump had no right to fill the seat so close to an election. They noted that after Justice Antonin Scalia died in February 2016, Senate Republicans refused to hold a vote on President Barack Obama’s nominee, Merrick Garland, arguing that the president should not be allowed to fill the vacancy until after an election that was nine months off.  

In a move of stunning hypocrisy, Republican leaders moved to fill Ginsburg’s seat even though the presidential election was only six weeks away at the time of her death on Sept. 18.  

When Trump announced that he was nominating Barrett to the high court Sept. 26 (during a public event that later caused Trump himself and others to fall ill with coronavirus), Americans United acted quickly. President and CEO Rachel Laser said Barrett’s record should disqualify her from a lifetime appointment to the nation’s highest court.  

“Americans United opposes the confirmation of Amy Coney Barrett because her record demonstrates hostility toward church-state separation – the constitutional guarantee of religious freedom for all,” Laser said. “The promise of the First Amendment is that the government, including our courts, will treat us all equally, regardless of our religious beliefs or whether we are nonreligious. In America, we are all free to believe or not as we choose, as long as we don’t harm others.   

“Barrett does not respect this ‘do no harm’ principle,” added Laser. “Her writings and professional affiliations with legal-advocacy groups leading the effort to weaponize religious freedom indicate that she believes religious freedom can be used as a sword to harm others, rather than as the shield the Constitution intended it to be. She has shown that she would allow claims of religious freedom to be misused to harm women, LGBTQ people, religious minorities, the nonreligious and others.”

She concluded, “If Barrett is confirmed to the Supreme Court, that separation is at risk. The right to love whom you choose, the right to make decisions about your reproductive and other health care, the religious-freedom rights of students and families in our public schools, the right to decide whether your money will fund religious practices, the right to be treated the same under the law regardless of your religious or nonreligious beliefs – all are at stake. We need our courts to protect the religious freedom and rights of everyone – not just of a privileged minority.”  

Americans United prepared a report, “The Nomination of Amy Coney Barrett: What’s at Stake? The Separation of Church and State,” that provides an in-depth look at Barrett’s record. The report notes that Ginsburg was a strong supporter of church-state separation. If Barrett takes her seat, it could shift the balance of the court for years.  

“Justice Ginsburg was a staunch supporter of the separation of church and state,” observed the report. “Yet President Trump has nominated Amy Coney Barrett, whose record indicates hostility toward church-state separation, to fill her seat. Religious freedom for all Americans hangs in the balance with this nomination.”  

The report examined Barrett’s record in several key areas, including the claim of religious freedom as an instrument of discrimination, taxpayer funding of religion, LGBTQ rights and the role of religion in public education. It also looked at Barrett’s willingness to overturn longstanding church-state cases and her views on denying Americans access to the courts. In every case, Americans United found examples of troubling rulings or statements by Barrett.

AU also pointed out that Barrett has a long track record of working with extreme Christian nationalist organizations. Perhaps most troubling­ly, she taught classes to law students during a seminar sponsored by the ADF five times. Yet when Barrett was asked about the ADF’s extreme anti-LGBTQ views in 2017 during her confirmation hearing for the lower court seat, she denied knowing much about the group.

Some observers found that hard to swallow.  

“That answer suggests either she’s stunningly unobservant or not fully truthful,” Jenny Pizer, senior counsel at Lambda Legal, told Mother Jones. “It’s truly incomprehensible that some­body who’s a conservative legal scholar with a focus on religion and very active in the very conservative religious legal movement would be unaware of ADF’s priorities.”  

During Barrett’s confirmation hearings last month, issues of religious freedom came up several times, but the nominee refused to be pinned down on specifics. At one point, she told the committee that she once told Justice Antonin Scalia, for whom she clerked in 1998, that the high court’s jurisprudence on church-state separation lacked clarity.  

As Barrett told the story, during her interview with Scalia he asked her to name an area of law she thought could be “better organized.”

“And off the cuff, I said, ‘Well, gosh, the First Amendment.’ And he said, ‘Well, what do you mean?’ And I fell down a rabbit hole of trying to explain without success – because it is a very complicated area of the law – how one might see one’s way through the thicket of balancing the Establishment Clause against the Free Exercise Clause. It’s a notoriously … difficult area of the law. And to that, you know, there is tension in the court’s cases. … It’s been something that the court has struggled with, you know, for decades to try to come to a sensible way to apply both of those clauses.”  

On other issues, such as religious discrimination, LGBTQ rights, reproductive rights and others, Barrett declined to state her views, asserting that these issues were likely to come before her as a justice. She also denied that Trump has pressured her or elicited promises that she will rule in a certain way.  

The Senate Judiciary Committee voted 12-0 to approve Barrett’s nomination on Oct. 22. (Democrats boycotted the vote to protest the process.) T