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The First Amendment’s religious freedom clause is in dire need of revision.
The need is becoming increasingly evident, especially considering a new U.S. Supreme Court (SCOTUS) decision that specifically allows churches to ignore government public-health edicts during the Covid-19 pandemic — along with other recent SCOTUS rulings privileging religion over public secular imperatives.
Here’s the First Amendment’s full text (the relevant passage is boldfaced):
Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof; or abridging the freedom of speech, or of the press; or the right of the people peaceably to assemble, and to petition the government for a redress of grievances.
The meaning of “religious freedom” in America during the happily-now-ending Trump presidency has become the freedom not for all citizens to privately believe and express whatever spiritual imaginings they choose without government interference but for religion to operate above the law that others must generally follow. And to require others to accept that discrimination.
Because? Well, because the implication by the high court majority is that religion is so overarchingly special it requires extra-special protection even over other possibly more fundamental American and human rights, like equal protection.
I must again point out that this means superstition — that’s what religion in essence is, after all — is at the highest government levels granted official primacy over reason.
Yes, religious freedom is, as they say, “enshrined” in the U.S. Constitution, but also for a time was the “Three-fifths Compromise,” for instance, a deal reached among delegates to the 1787 U.S. Constitutional Convention in which it was agreed that three out of every five slaves would be counted as people. This gave slave states “a third more seats in Congress and a third more electoral votes than if slaves had been ignored, but fewer than if slaves and free people had been counted equally,” according to The Writings of James Madison, page 143.
After all, the niggling problem was that — as most Americans at the time (at least subliminally) agreed — the phrase “All men are created equal” meant all white men (pointedly not black men or women).
This dubious and ignoble compromise wasn’t repealed until 1868, after the Civil War, when it was superceded by the Fourteenth Amendment.
So, it is clear that however “enshrined” things are in the Constitution, they are not sacred in a mystical sense or even sacrosanct, or untouchable, in practice. As the ejection of the Three-fifths Compromise language illustrates, America’s founding document is a living, breathing, evolving blueprint for the nation’s governance and civic life. It’s not an inert, absolutist document, as fundamentalist Christians view the Bible (which isn’t “sacred” either, let’s be honest).
Lest it be doomed to become as dead as Latin, the Constitution must adapt meaningfully and significantly (if carefully, thoughtfully and responsibly) as American society is certain to transform in fundamental ways over time.
Which brings me back to the Supreme Court’s arguably discriminatory new rulings spurred by its recently increased conservative — and religiously conservative — majority via very questionable GOP presidential and congressional court-packing tactics. All current justices are devout Catholics, effectively Catholic (Neil Gorsuch) or fervent Jews.
“The Supreme Court’s new conservative majority late [on Nov. 25] sided with religious organizations in New York that said they were illegally targeted by pandemic-related restrictions imposed by Gov. Andrew M. Cuomo to combat spiking coronavirus cases,” the Washington Post reported.
The majority in the 5-4 decision asserted that the quasi sacred edicts of the Constitution (as a proxy for God, apparently) must override those of common sense and public health.
“Even in a pandemic, the Constitution cannot be put away and forgotten,” the unsigned opinion stated in granting a stay of the state’s pandemic orders. “The restrictions at issue here, by effectively barring many from attending religious services, strike at the very heart of the First Amendment’s guarantee of religious liberty.”
In effect, the august majority justices are saying that the right of Americans to worship their gods is more fundamentally important than the right of their governments to issue rational rules to help keep everyone — believers and nonbelievers — safe from natural catastrophes, like pandemics.
Again, this gives our worst superstitious impulses primacy over the better angels of real-world actualities (i.e., science).
SCOTUS Justice conservative Justice Samuel A. Alito Jr. is in alignment on this issue with his fellow court conservatives, including Justice Amy Coney Barrett, whose confirmation to the court was recently rushed by the GOP-led Senate to precede the Nov. 3 election.
Speaking earlier this month to the conservative Federalist Society, which hand-picked a slate of uber-conservative potential SCOTUS and federal court nominees for the president, Justice Alito expressed his worry and resentment that respect for faith appears to be eroding in American society. He lamented that the pandemic “has resulted in previously unimaginable restrictions on individual liberty,” such as local-government edicts sharply limiting worship crowd size and requiring face masks.
“This is especially evident with respect to religious liberty. It pains me to say this, but in certain quarters, religious liberty is fast becoming a disfavored right,” Alito added.
Reasonably, religious rights ought to be “disfavored” in relation to rights associated with real-world imperatives, like highly infectious and lethal viral pandemics (e.g., the coronavirus). Religion is favored only because its ostensible importance is vastly overexaggerated in majority-Christian America.
Justice Gorsuch, a new arch-conservative on the court, is of the same mind but even more aggressive about it than Alito. He archly disagrees with Chief Justice John Roberts, who wrote in a similar earlier case in California that the court should be very wary of “second-guessing” public health officials and overruling their pandemic rules based on expert knowledge that justices do not have.
Gorsuch wrote in the newest case that lower courts should not follow Roberts’ cautious counsel in cases regarding pandemic-related restrictions:
“Courts must resume applying the Free Exercise Clause. Today, a majority of the Court makes this plain.”
He added that the new ruling should dispel “misconceptions about the role of the Constitution in times of crisis, which have already been permitted to persist for too long.”
In other words, he’s saying God should be viewed as supreme, in crisis or in calm.
Gorsuch and Alito are not talking about the religious freedom to believe what you want and express those beliefs; they’re saying that everyone else should adjust to — and accept the attendant risk from — the beliefs of faithful people whose religious rituals are inconvenienced by the pandemic and who refuse to temporarily suspend them even under law, even if it would save lives.
Ironically, the New York’s tough pandemic restrictions were implemented in neighborhoods, predominantly traditional Jewish and Catholic, that had so flagrantly held mass worship services that new Covid-19 cases in their areas shot through the roof.
Oh, absolutely, let them continue doing what they’re doing.
I’m sure the Founding Fathers would agree that protecting faith is so important that it would reasonably sometimes require sacrificing thousands of innocent American pandemic victims at the altar of religious freedom.
Mostly, the Founders were worried religion would try to corrupt government, which is exactly what SCOTUS conservatives are doing — they are insisting faith is the supreme value in our republic and that the rest of us must accept that.
Because, you know, religious freedom is mentioned in an official document.