This year, the U.S. Supreme Court term offered modest victories for LGBTQ rights and reproductive health. But theocracy was the real winner.
At the end of the term, the Court dropped three decisions that essentially entrenched evangelical “values” into U.S. law. These decisions suggest that the Christian conservative crusade to blur the lines between democracy and theocracy is bearing fruit. This has long been a project of the religious right, and the election of Donald Trump gave them the opening they needed. In the first two years of his presidency, Trump installed Justices Neil Gorsuch and Brett Kavanaugh, and, for conservative Christians, those appointments have paid off.
Theocracies always codify religious texts into power, but this theocracy is uniquely Trumpian. It pits the powerful against the weak, and the former always comes out on top. It doesn’t make any reference to sacred texts as such. Instead, it operates according to a logic of power, unmoored from anything save amassing more power. It also taps into conservative Christians’ sense of victimhood—that they are the beleaguered and bothered minority who need the protection of the Court.
In reality, however, conservative Christians are the bothersome majority, and it is we who need protection from them. They are in control of basically everything right now when it comes to telling people what they can do with their bodies.
Sex. Abortion. Parenthood. Power.
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In Our Lady of Guadalupe School v. Morrissey-Berru, two former private Catholic school employees sued their schools, arguing they were wrongfully terminated in violation of federal laws. But the Court decided the real problem wasn’t that a religious school fired employees for having the temerity to get breast cancer or get old—in the Court’s view, the real problem was forcing religious schools to follow the law when it comes to workplace discrimination.
Our Lady of Guadalupe turned on the “ministerial exception,” a doctrine that says ministers are not subject to secular employment discrimination laws. In Hosanna-Tabor Evangelical Lutheran Church and School v. Equal Employment Opportunity Commission, the Court ruled that the U.S. Constitution bars employment discrimination lawsuits alleging wrongful termination filed on behalf of ministers against their church employers. This ministerial exception makes perfect sense if we’re talking about actual ministers. It wouldn’t be fair, for example, to force an open and affirming Episcopalian church to continue to employ a minister who has suddenly decided they hate LGBTQ people. Ministers—actual people with that title and that job—are supposed to carry and convey the values of the religious organization, and if they don’t, church employers are permitted to fire them.
What Our Lady of Guadalupe wanted, though, was to neatly sidestep employment laws by calling practically every one of its employees a “minister.” And the Supreme Court let them. As a result, an agnostic person who happens to teach English literature at a private Catholic school would be considered a minister if their job requires them to lead prayers, for example. As Justice Sonia Sotomayor wrote in her dissent, once you call them “ministers,” you can fire them “for any reason, whether religious or nonreligious, benign or bigoted, without legal recourse.”
The Court chose to protect the schools rather than the people who work for the schools, particularly the people who have the misfortune not to follow that school’s particular flavor of religion but who are occasionally obliged to convey religious ideas to students.
The Court’s ruling in Our Lady of Guadalupe is a triumph of employer over employee, something that has been a hallmark of the Roberts Court even with secular employers. Add religion to it, and you get a theocracy where religious employers can basically do whatever they want, including firing people for being sick, old, gay, or Black.
The Roberts Court handed religious conservatives another workplace-based victory this term in Little Sisters of the Poor v. Pennsylvania, thanks to some nuns. Not nuns who are concerned mainly with caring for people, as most nuns are, but nuns who are fixated on employer-provided birth control coverage.
In Little Sisters of the Poor, not only did the nuns back the Trump administration’s theocratic ambitions, they also acted as a shield—a pleasant face for the Trump administration’s efforts to dismantle the Affordable Care Act’s birth control benefit. The birth control benefit requires employers to offer no co-pay contraception in their employee health benefits packages.
Back in 2017, the Trump administration created an exception to the birth control benefit that was big enough to drive several truckloads of nuns through. Essentially, the administration said employers can deny access to contraceptive coverage as long as they can provide some religious or moral excuse to explain why providing birth control is some outrageous affront to their religious sensibilities.
By agreeing with the Little Sisters, the Court allowed employers with a theocratic worldview free rein to eviscerate the rights of their employees. Or, as Justice Ruth Bader Ginsburg wrote in her dissent, the decision “casts totally aside countervailing rights and interests in its zeal to secure religious rights to the nth degree.” Religious employers—now basically expanded to include any type of company where people at the top hold conservative religious beliefs—scored an absolute triumph over their employees who have a legal right to birth control under federal law. Score another one for theocracy.
Funding for religious schools
Theocracy notched another important win in Espinoza v. Montana, the decision that obliterates the line between church and state where religious schools are concerned. Espinoza wasn’t about controlling people’s bodies, a favorite pastime of conservative evangelical Christians. Instead, another favorite pastime was front and center: siphoning taxpayer money away from the public and using it to spread regressive conservative views and underwrite discriminatory practices. But this time, it’s students, not employees, who are getting shafted.
Like many other states, Montana passed a law that, due to the pesky First Amendment, prohibited taxpayer dollars from flowing to religious schools. In Espinoza, the Supreme Court tossed that law out, a decision affecting over three dozen states with similar laws.
Now that those laws are out the window, taxpayer money can be allocated to schools run in accordance with bigoted worldviews and policies, such as discriminating against students based on their gender identity or sexual orientation.
As for students with disabilities? Religious schools have never been required to admit those students. The trade-off, though, has been that they don’t get public money. Now, religious schools can collect taxpayer money just as public schools do. Unlike public schools, however, they still aren’t required to admit students with disabilities. And if religious schools choose to admit students with disabilities, they don’t have to do anything to help those students. They don’t have to diagnose any special needs or provide any support. Schools win and students lose—especially students who are already vulnerable to mistreatment.
It’s quite the pattern: the powerful over the powerless and hardline religious conservatives over … everyone else.
This trio of Supreme Court decisions doesn’t just highlight the power of the religious right—it also highlights the absolute capture of the federal courts by the Trump administration. Thanks to the unholy alliance of the Federalist Society, the administration, and Senate Majority Leader Mitch McConnell, there are 200 new ultra-conservative judges on federal benches.
And at the very top of the heap, there’s a conservative Supreme Court majority that’s incredibly amenable to pretending religious people need to be protected from the terror of secular rights.