The lasting depredations of the Trump Presidency were brought into sharp focus by last week’s testimony before the House Select Committee investigating the events of January 6th, which left an indelible portrait of Donald Trump as a food-throwing despot willing to encourage an armed mob to march to the Capitol. And, in addition to an attempted coup, we have him to thank for 2022’s becoming the turning point of the Supreme Court’s conservative revolution.
In a single week in late June, the conservative Justices asserted their recently consolidated power by expanding gun rights, demolishing the right to abortion, blowing a hole in the wall between church and state, and curtailing the ability to combat climate change. The Court is not behaving as an institution invested in social stability, let alone in the importance of its own role in safeguarding that stability. But what if its big and fast moves, eviscerating some constitutional rights and inflating others, are bound for collision? As people harmed by one aspect of its agenda look to other aspects of it to protect them, the Court may not be altogether pleased with where that process leads.
Shortly before the Court, in Dobbs v. Jackson Women’s Health Organization, overruled Roe v. Wade, a synagogue filed suit in a Florida court, challenging, under the Florida constitution, the state’s new law criminalizing pre-viability abortions. Among the plaintiff’s claims is that the abortion ban violates the right of Jews “to freedom of religion in the most intimate decisions of their lives.” The suit states that Jewish law stipulates that life begins at birth, not before, and “requires the mother to abort the pregnancy” if there is a risk to her “health or emotional well being.” Thus, the plaintiff argues, the abortion ban infringes on Jewish free exercise of religion.
Many post-Dobbs lawsuits can also now be expected to assert that abortion bans violate state constitutions, which may be more protective of individual rights than the federal Constitution is. Marriage equality, for example, was protected in Massachusetts by a state constitutional ruling twelve years before the Supreme Court declared a federal constitutional right to same-sex marriage. Republican-dominated state courts, no less than G.O.P.-led state legislatures, though, may well stymie such efforts to preserve abortion access. Last month, the Iowa Supreme Court simply overruled its own 2019 decision affirming a state constitutional right to abortion, leaving Iowa free to ban the procedure.
But the Jewish group’s claim is a bellwether, because the Supreme Court has lately been exceedingly accommodating of people’s religious views. This term, two cases resulted in historic expansions of the Free Exercise Clause of the First Amendment. The Court held that Maine, which provides tuition funds for students who reside in districts lacking public secondary schools to attend secular schools elsewhere, must also provide funds for such students who choose to attend religious schools. The Court also held, in the case of a football coach at a public high school in Washington State, who knelt and prayed on the field after games, that the school district could not stop him, even if it wanted only to avoid the appearance of endorsing religion. The upshot, Justice Sonia Sotomayor wrote, in a dissenting opinion, is that the Court “elevates one individual’s interest in personal religious exercise . . . over society’s interest in protecting the separation between church and state.” And, in a free-speech case this term, the Court held that Boston must allow a group to fly a Christian flag on the flagpole outside city hall if it allows other groups to hoist non-religious flags, such as the pride flag.
The Supreme Court’s expansion of religious liberty is long-running, but it has rapidly accelerated in the two years since the Court gained a conservative supermajority. At the start of the pandemic, in 2020, the Court repeatedly rejected claims of churches that objected to states’ stay-at-home orders. But, after Justice Amy Coney Barrett was confirmed, in the fall of 2020, a majority—the same five conservative Justices who eventually voted to overrule Roe v. Wade—held in favor of Catholic and Orthodox Jewish organizations that objected to a state’s stricter capacity limit for houses of worship than for essential businesses. Similarly, the courts have historically and routinely rejected religious free-exercise challenges to compulsory vaccinations, such as for admittance to schools. But, since last year, a number of courts have required religious exemptions to COVID-vaccine mandates. According to a recent Yale Law Journal study conducted by Zalman Rothschild, a fellow at the Stanford Constitutional Law Center, “while every federal court in the country faced with the issue has rejected vaccine-mandate challenges brought under free-speech or substantive-due-process theories, free exercise challenges have succeeded in securing wins for vaccine objectors.” He has since noted that “free exercise has exploded out of proportion.” Indeed, that expansion threatens to allow people to claim a religious free-exercise right to discriminate against L.G.B.T.Q. individuals. But it may also arm those who seek religious exemptions from abortion bans with powerful arguments that courts will have to grapple with. And some groups that make such arguments may be beyond the embrace of the general public—much less that of Republican-dominated courts.
The Satanic Temple, for example, headquartered in Salem, Massachusetts, claims seven hundred thousand registered members in congregations around the world. Courts and the I.R.S. have recognized the organization as a religion (which doesn’t actually worship Satan as a deity but, instead, views him as a symbol of dissent against tyrannical authority). In keeping with one of its core tenets—that “one’s body is inviolable, subject to one’s own will alone”—TST has filed several lawsuits pressing a free-exercise claim that objects to abortion bans. Its position is that a state’s imposition of a waiting period or counselling prior to an abortion is as much a violation of religious freedom as it would be prior to a baptism or a Communion.
We are accustomed to hearing religious objections to abortion. Religious objections to abortion bans also reflect the fact that, for many people, questions of when human life begins and whether to have a child are centrally informed by their religious beliefs. It is possible that these free-exercise claims won’t succeed, because avoidance of hypocrisy is not a value that we expect from this Supreme Court, any more than we expect it from the man responsible for its composition. The Select Committee and the Department of Justice may yet force Trump to answer for some of his actions, but, notwithstanding the historic swearing-in of Justice Ketanji Brown Jackson last week, we are stuck with his Court, and the damage it will do, for the next generation. ♦