Justice Kennedy’s Replacement and the Religious Test Awaiting

Posted in: Constitutional Law

Tellingly, the Supreme Court issued its decision upholding President Donald Trump’s travel ban, Trump v. Hawaii, on the same day that it gave crisis pregnancy centers the right to exclude information about abortion to pregnant women in NIFLA v. California. I don’t think the Court was conscious of the irony of pairing these two announcements, but ironic it was. The Court upheld a draconian line drawn against Muslims, which was launched by some of the most discriminatory language against a religion by a president in this country’s history, while it protected pro-life Christians in California from having to hand a pre-printed pamphlet to pregnant women describing the medical options available, including abortion. These decisions, along with Masterpiece Cakeshop, Ltd. v. Colorado Civil Rights Commission, are worth examination because they outline a religious litmus test that likely will be applied by Trump to replace the retiring Justice Anthony Kennedy.

These three decisions are linked by a common thread with this administration: as a matter of fact they are not devoted to full-blown religious liberty for everyone. Instead, they prefer one religious worldview over others, treating its goals—anti-abortion and anti-same-sex marriage—as so important that even de minimis burdens must be lifted for these believers. . This triumphal embrace of these choices is reminiscent of the point made during the Burwell v. Hobby Lobby Stores, Inc. oral argument (defending the owner’s right to shape employee health care according to his religious lights) that the right to oppose abortion is a preeminent right superior to others. The Court’s decision then carried through on this theme as it implied that its reasoning would not spread to other employers slicing off other aspects of healthcare, because the case was about a special belief—opposition to abortion.

This predilection for one faith worldview but not others is underscored by the usually loquacious conservative religious liberty groups who had nothing to say about the Muslim travel ban decision.  These are groups that several weeks earlier loudly praised the Masterpiece Cakeshop decision holding that a few ambiguous comments by government officials amounted to religious animus against a Christian. The decision was narrower than an outright declaration that it is permissible for a shop owner to discriminate against same-sex couples, as I discussed here, but the fact that the baker won on any grounds made these groups ecstatic. Yet, they did not say a peep when the Supreme Court upheld the power of the president to keep Muslims out of the country? To be sure, the president had “watered down” his self-professed intent to exclude this one set of religious believers from the United States by adding the fig leaf of a few non-Muslim countries to the ban. But let’s be clear: this ban was saturated with anti-Muslim animus. That didn’t matter to the Court or the Trump right. Predictably, Trump could not have been happier with the Court when it upheld the ban.

Yet, the conservative religious groups here and here sprang to action to celebrate the right of pregnancy anti-abortion centers to refuse to provide a pregnant woman pamphlets with neutral medical information about her options. These are faith-based pregnancy centers. The women who come to them are vulnerable and deserve full information about their legal options in their time of need, but women’s interests yet again were outweighed by the abortion opponent’s interests. .

In these decisions, Kennedy’s vote was cast with the conservatives. Still, his standing as the swing vote remained intact. He was still the conservative justice who had refused to overrule Roe v. Wade in Planned Parenthood v. Casey, authored the decisions establishing LGBTQ rights starting with Romer v. Evans and culminating in the protection of same-sex marriage in Obergefell v. Hodges. He also authored City of Boerne v. Flores holding that the Religious Freedom Restoration Act was unconstitutional. He was no ideologue. He was the crucial vote that stood between conservatives and privacy and LGBTQ rights.

Then he announced his retirement.

These Cases Suggest a Religious Test for Justice Kennedy’s Replacement

There are three themes that can be gleaned from the Court’s recent decisions discussed above, which dovetail with Trump ideology to provide a window into the likely test that will be applied to Kennedy’s replacement. First, the candidate needs a world view that treats opposition to abortion as a sacred truth that transcends all other concerns. In other words, opposition to Roe v. Wade is a prerequisite.

Second, the candidate should be willing to genuflect to Trump’s national security decisions despite obvious religious discrimination, which can be acceptable when it does not involve persecution of Christians. Moreover, the reasoning of the Hawaii decision need not be limited to Muslim discrimination; it could also work to justify race-based restrictions on immigration, say, from Mexico or Guatemala.

Third, the needs of religious believers to avoid dealing with same-sex marriage couples should be paramount. Indeed, an itch to overrule Obergefell is likely a big plus.

Trump has prioritized this ideology with religious-liberty executive orders shaped in this religious worldview, Muslim-hostile immigration policy, a crusade against transgender and LGBTQ rights, and tough talk on abortion as he has restricted its availability in every corner imaginable as he did here and here. These aren’t views that can be divorced from a religious worldview or interest group. Trump literally has established a religion in the federal government. In another era that would be vulnerable to a constitutional challenge. Sadly, the sitting Supreme Court has sidelined the Establishment Clause to the point it didn’t even check a Muslim-centered travel ban; it’s unlikely to have the teeth necessary to force the Trump Administration to justify its policies with neutral purposes.

While private individuals have the right to hold these beliefs and any others, it is another matter when we are talking about the government and the selection of a Supreme Court justice. Rather than seeking a cookie-cutter candidate to fit a religious mold, the criteria should include intelligence, experience, and heart. And devotion to the rule of law: every justice should be able to pledge to decide cases according to the law, as opposed to their personal beliefs. Instead, we are talking about a religious test.

By the way, that is unconstitutional:

“The Senators and Representatives before mentioned, and the members of the several state legislatures, and all executive and judicial officers, both of the United States and of the several states, shall be bound by oath or affirmation, to support this Constitution; but no religious test shall ever be required as a qualification to any office or public trust under the United States.”

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