SCOTUS and a Frightening Thanksgiving
By: James Finn
Tags: Justice, LGBTQ, Equality, Creative Non Fiction, History

What a Thanksgiving!

Yesterday would have been hard no matter what. My father died in August, and after moving to rural Michigan where I spent three years caring for him, facing a major holiday alone was always going to be rough.

A big-city mouse all my adult life, there’s nothing like clattering around an empty country cottage to demonstrate that even loving choices can have painful consequences.

As Remington Write would say, life isn’t fair, and that’s just the way it is. We can either deal with reality … or suffer. I consoled myself with the knowledge that millions of Americans were missing their own loved ones due to covid-19, and my own small suffering is nothing in the face of our collective national pain.

So, while I did not look forward to Thanksgiving, I did my best, buying a small roast and a few festive things like scented candles, pies, and nice wine to combat the grief and loneliness I expected.

I woke up Thanksgiving morning in shock

I didn’t expect news from the Supreme Court would make the holiday even more grim, but that’s what happened. Late Wednesday night, the court’s now hyper-conservative majority sent a message about religious liberty that has LGBTQ and other marginalized people going pale with fright.

I rolled out of bed early, ready to start cooking, and got belted with the news that the court decided 5–4 (Amy Coney Barrett being the deciding vote) that churches may hold services during the coronavirus pandemic in defiance of state restrictions on attendance based on expert public health advice.

The conservative wing that now dominates the high court has shown us they won’t let even high death rates stand in the way of Federalist Society doctrines that privilege powerful religious institutions.

We no longer have a majority of justices on the Supreme Court, we have a college of fierce ideologues.

They’ve demonstrated they don’t understand the difference between religious liberty and religious privilege, buying into the falsehoods of our founding mythology. More on why Thanksgiving myths spread lies about religious freedom in a minute, but first let’s sketch Wednesday night’s shocking covid-19 church ruling.

New York restricted church congregation sizes during the pandemic

Early on in the pandemic, Governor Cuomo of New York imposed restrictions on the number of people allowed to congregate in churches, basing specifics on covid “hotspots” designated by public health experts who also designed the policy.

On Nov. 12, the Roman Catholic Diocese of Brooklyn and the Haredi/ Orthodox Agudath Israel of America asked the Supreme Court for a temporary injunction to protect them from Cuomo’s order. Wednesday night in a 5–4 decision, the court blocked the order and sent the case back down for further review.

SCOTUS acknowledged its lack of expertise and favored religion anyway

The diocese and the synagogue association argued that attendance limits unfairly singled them out for “blame and retribution” for a recent spike in coronavirus cases. While courts across the nation, and even the high court previously, have deferred to governors setting restrictions based on medical expertise, the court changed course Wednesday night.

“Members of this Court are not public health experts,” acknowledged the majority in an unsigned opinion. “And we should respect the judgment of those with special expertise and responsibility in this area. But even in a pandemic, the Constitution cannot be put away and forgotten.”

They overruled public health experts anyway — elevating religion to a privileged status free of responsible oversight.

The court upheld the archdiocese’s argument that the “pandemic alone cannot justify overbroad, untailored closure orders of indefinite duration directed at all houses of worship, that in another time would plainly be found to violate the Constitution.”

The court’s reasoning seems cut off from reality

If a global pandemic that’s exploding in the US doesn’t justify emergency action, what does?

Colin Dickey, writing in Gen, observes that the Trump administration has led the American political class to largely abandon its responsibilities to the American people, creating a spirit of covid denialism.

As the country spirals further and further out of control, Americans have embraced denial — denial of the disease, denial of the impact of one’s own behavior on others, and finally, a denial of death. As we head into the holidays, even people who previously took Covid-19 seriously are now making the calculation that ultimately, it does not matter.

Now it seems the Supreme Court has jumped on the denial train, declaring allegiance to religious privilege even in the face of irresponsible or deadly behavior. Justice Roberts seemed to scold the majority for exactly that in his dissent. “It is a significant matter to override determinations made by public health officials concerning what is necessary for public safety in the midst of a deadly pandemic,” he wrote.

I’m not writing about specific public-health arguments, because this story is about religious liberty and the American impulse to subvert it, to turn it into a get-out-of-jail-free card for powerful institutions that harm innocent people in the name of faith.

But no serious person doubts that large religious gatherings are exceptionally dangerous right now, that they will spread the coronavirus, that real people will become sick with covid-19, and that many of them will die.

No serious person doubts that for the next several months while we wait for a vaccine, we must make sacrifices for the common good — if not to save ourselves then out of love for our neighbors.

Religious liberty mythology: Thanksgiving falsehoods —

It’s ironic that the high court made their stunning decision the evening before Thanksgiving, a day when most of us learn or repeat falsehoods about religious liberty.

We honor the religiously intolerant Pilgrims and Puritans who established powerful religious institutions that ruled over every aspect of colonial lives. Claiming to be fleeing persecution, the Puritans established one of the most religiously oppressive regimes on earth, going so far as to hang people who disagreed with their religious doctrines.

The Puritans founded Massachusetts as an intolerant society based on theocratic principles. They hunted down Catholics and Quakers, hanging Mary Dyer and three other Quakers on the Boston Common between 1659 and 1661. We don’t teach our children this, but we should.

America’s religious founders persecuted Native Americans for their faith

If Massachusetts’ Puritan founders despised other European religions, they reviled Native American faith even more. According to Alfred A. Cave in the International Social Science Review, Puritans considered Native Americans to be Satanists, worthy of being tortured, murdered, and driven out of their land on religious grounds.

This was convenient to the Puritans given the area they wished to colonize was far from uninhabited.

America’s religious founders used faith to justify genocide

Human civilization in the Americas was every bit as ancient and rich as in Europe. New England was full of villages, roads, cornfields, monuments, cemeteries and forests cleared of underbrush. Generations of Native people had cultivated land with the expectation of passing it along to their descendants.

They were driven off their land by viruses and bullets instead. Victims of genocide, they’ve left few descendants.

Individual versus institutional liberty

Some of the men who drafted our Constitution recognized, if dimly at times, the dangers of powerful churches and their analogs. They tried to frame a system that protected individual religious liberty while keeping religious institutions out of the public square.

But most of us forget men like Thomas Jefferson who, morally flawed as he was, grasped the dangers of churches becoming embroiled in government or being granted special privileges. He insisted the First Amendment must never be taken to mean that churches would be exempt from neutral laws, opposing laws to close businesses on Sundays as unconstitutional religious privilege.

Bringing it back around to LGBTQ and marginalized people

I wasn’t upset Thanksgiving morning merely about a Supreme Court decision that will have little practical effect on my life. New York is doing a much better job with virus containment than my own state of Michigan, and this decision isn’t going to change that.

I’m worried about my own freedom.

I’m agonizing about what a hyper-conservative judiciary is going to do to hurt LGBTQ people, people of color, and women. We all have so much to lose at the hands of a powerful churches who want to put us and keep us in our places as distinctly second-class citizens.

The court Wednesday sent out an alarm across the land. They will privilege powerful churches.

That scares me because soon they will be asked to decide about steps the State of Indiana is taking to make same-sex marriage second class. I’m working on an article about that now, but Slate’s Mark Joseph Stern is alarmed the high court has accepted the case, signaling they are willing to overturn some aspects of same-sex-marriage jurisprudence on religious liberty grounds.

I’ve already written about the justices signaling their willingness to let churches discriminate against LGBTQ people when spending taxpayer dollars on government contracts in adoption matters. Oral arguments in Fulton v City of Philadelphia revealed a court with a majority bent of privileging powerful churches at the expense of liberty and equality for marginalized people.

Wednesday’s 5–4 majority decision was a battle cry

Those of us who used to look to the courts for protection from the tyranny of the majority now find ourselves on our own. For the foreseeable future, the courts are in the hands of judges who call openly for systemic religious privilege rather than Jeffersonian ideals of individual religious freedom.

Many marginalized people experience powerful churches as agents of oppression and persecution. The Supreme Court in now firmly on the side of those churches.

It’s hard to know where things will go from here, but the Trump presidency has radically remade the courts, and equality advocates are, for the moment, floundering for effective strategies and tactics.

That’s the message that made my Thanksgiving so personally difficult. Private grief merged with public grief over an institution I used to cherish as a champion of liberty.