This Doesn't Bode Well

The Supreme Court in the past has ruled on the side on the non-discrimination laws when “religious freedom” came up. But now we have a Trump court!

And there is a case winding its way through the courts and we might see a whole different outcome now.

Supreme Court to reconsider religious objectors' refusal to serve same-sex couples
NPR
By Nina Totenberg and Ryan Ellingson
February 22, 2022


The U.S. Supreme Court is once again taking on the simmering conflict between laws banning discrimination against same-sex couples and religious adherents.

The court on Tuesday agreed to review a case brought by Lorie Smith, a prospective web designer who wants to start a wedding website business but has not done so because Colorado law bars discriminating against same-sex couples in public services, and she believes that providing her work for same-sex couples would conflict with God's will.

If this all sounds very familiar, that's because it is. In 2017, the court heard a very similar challenge to Colorado's anti-discrimination law from a baker who objected to creating cakes for same-sex weddings.

In one of his last opinions writing for the court's majority, Justice Anthony Kennedy drew a narrow line that emphasized the dignity of the individuals on both sides but chided the state's civil rights commissioners for comments disrespecting the baker's religious convictions.

But since then Sen. McConnell and Trump packed the court.

Technically, the court's vote was 7-to-2, but in reality the justices were more deeply split, with Chief Justice John Roberts joining Kennedy's narrow opinion in full, the three other conservative justices basically siding with religious rights, and four liberal justices upholding anti-discrimination laws. Since then, the make-up of the court has changed dramatically, with Trump appointee Brett Kavanaugh replacing Justice Kennedy, and Amy Coney Barrett, also appointed by Trump, replacing Justice Ruth Bader Ginsburg after Ginsburg's death in 2020.

A little history of the history of the Supreme Court ruling on the First Amendment.

Back in 1971 the court established a three prong test to see if a law was religiously neutral. In an article  on the Middle Tennessee University website they have the history of the test.

That three-prong test articulated by the Supreme Court in Lemon v. Kurtzman (1971) is used by the high court and other federal courts to determine whether government has violated the First Amendment principle of church-state separation. Even though the word neutrality does not appear in the Lemon test, many scholars and judges have interpreted the test’s commands to mean that government must be neutral in matters of religion — that is, laws and government actions should have a secular purpose, should neither advance nor inhibit religion, and should not foster an excessive entanglement with religion. Over the years, various justices have tinkered with and criticized the Lemon test, but the Court has never overruled it.

In several recent decisions, beginning with Mueller v. Allen (1983), the high court used neutrality in part to determine whether certain government laws and actions were violating the establishment clause. Most of the cases centered on government aid to religious entities.

So what that means is if a law is not targeting a religion and passes the Lemon test, it is not against the First Amendment.

So if a Quaker doesn’t want to pay income tax because of the military the courts have found that the tax laws are religiously neutral. The same went for non-discrimination laws. However, that may all change with the packed court.

Will the Supreme Court Abandon True Government Neutrality Toward Religion?
The high court chips away at the once impregnable wall between church and state.
The American Prospect
By Elliot Mincberg
September 8, 2017



Government neutrality toward religion is a crucial principle for the protection of religious freedom. However, the Supreme Court, pushed by the religious right and its most conservative justices, has eroded this key protection, moving toward a one-way ratchet in favor of religion. Under this legal regime, not only would churches and other religious institutions be treated equally with others when it comes to federal allocations, they would also get a clear preference when they object to generally applicable anti-discrimination or other laws.

As the damaging Trinity Lutheran decision shows, even some moderates on the Court are inching toward this view. With a number of cases on the Court’s docket this fall, including a headline-making case involving a Colorado bakery, that raise important questions about the government neutrality toward religion, it is vitally important to understand the danger that this one-sided approach to the First Amendment poses to religious liberty, civil rights, and other values.

The principle of government neutrality toward religion is grounded in the First Amendment's two religion clauses: the Free Exercise Clause, under which government must not substantially burden the exercise of religion without a compelling government interest, and the Establishment Clause, under which government must not establish or promote religion. Taken together, these constitutional protections require that government be neutral toward religion, neither favoring nor disfavoring any specific religion or religion generally.

So with the packed Trump/McConnell court we may see all that change and for the worst!

The court threw out precedent in the Hobby Lobby and the Fulton v. City of Philadelphia cases will they continue to expand “Religious Freedom” to where it will make a mockery of our legal system and create a two tier justice system.