Fighting Discrimination

The Supreme Court's Radical Redefinition Of Religious Freedom Threatens Our Rights

  Rob Boston

Religious freedom, Americans United has pointed out several times lately, is a cherished principle of the American people, but it’s not without limits.

For a long time, it has been understood that religious practices that cause harm to others, treat some people as second class or expose communities to danger can be curtailed. Like all rights, religious freedom comes with responsibilities.

Unfortunately, the U.S. Supreme Court is upending that foundational definition of religious freedom and replacing it with one that much more radical.

Steven K. Green, former legal director of Americans United who’s now a professor of law and director of the Center for Religion, Law & Democracy at Willamette University in Oregon, skillfully dissected the problem with the high court’s approach to religious freedom in a column that ran originally on The Conversation and was reprinted by Religion News Service.

“In prioritizing religious liberty claims over health and anti-bias concerns, the Supreme Court’s conservative majority has, to my mind, promoted a skewed conception of what religious freedom is,” observes Green.

Green also points out that under this radicalized approach, certain religious groups are being given preferential treatment. For example, since last fall, the Supreme Court’s new, ultra-conservative majority has insisted that pandemic-related public health orders treat houses of worship like essential services, such as stores where people go to buy needed supplies, instead of the secular entities they are really akin to, such as theaters and concert halls.

And, if the religious owners of for-profit businesses win the right to ignore anti-discrimination laws that protect LGBTQ Americans, they’ll be able to do something no secular business owner can: refuse to serve people based on who they are.

Green writes, “In this way, religious entities cannot be treated any differently in the pandemic from the most essential service – but they would be able to discriminate against customers or employees in a way the essential services cannot. It is, I believe, the legal equivalent of having your cake and eating it, too.”

Terminology is important. The doctrine that is unfolding at the Supreme Court right now isn’t religious freedom. It is religious supremacy – and it’s alien to our Constitution, our history and our core values. That’s why Americans United and our supporters will continue to fight it.

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