Commentary

The Supreme Court ruling in a prayer case is a very bad sign for nondiscrimination protections

Someone praying in front of the Capitol building
Photo: Shutterstock

The Supreme Court isn’t done threatening LGBTQ rights. First came the Court ruling making it easier for anyone to carry firearms in public, heightening the threat to LGBTQ people at a time of rising hate incidents. Then came the ban on abortion, with Clarence Thomas’ open invitation to overturn marriage equality and sexual privacy protections. 

Now, in yet another 6-3 ruling, the right-wing justices have said that public expression of faith – in this case, Christian, of course – triumphs over separation of church and state. The case involves a public school football coach who was fired for praying on the 50-yard line during games.

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“Respect for religious expressions is indispensable to life in a free and diverse republic — whether those expressions take place in a sanctuary or on a field, and whether they manifest through the spoken word or a bowed head,” Justice Neil Gorsuch wrote in the majority opinion. “Here, a government entity sought to punish an individual for engaging in a brief, quiet, personal religious observance.”

The problem is that some of the students felt pressured to participate in the prayer sessions. In her dissent, Justice Sonia Sotomayor called the majority out for ignoring the effect on the students.

“Today’s decision is particularly misguided because it elevates the religious rights of a school official, who voluntarily accepted public employment and the limits that public employment entails, over those of his students, who are required to attend school and who this court has long recognized are particularly vulnerable and deserving of protection,” she wrote.

The idea that the right to express your faith is the pinnacle of free expression is a bad sign for nondiscrimination protections. The religious right has been seeking to gut those laws for years, arguing that they violate “religious liberty.”

Today’s ruling gives the right’s argument a big boost. Indeed, the coach was represented by the First Liberty Institute, a right-wing legal group with a long history of anti-LGBTQ activity.

It has represented businesses that refused to provide services to same-sex couples getting married, an Air Force colonel who was reprimanded for refusing to sign a “certificate of spouse appreciation” for a soldier because the spouse was the same sex as the soldier, and a judge sanctioned for refusing to perform same=sex weddings. In each case, the Institute has argued that the religious rights of its client was being trampled.

If anything, today’s ruling was a steeper hill to climb than the usual exceptions sought on the grounds of religious liberty because it involves a public entity. The Court had previously been extraordinarily cautious about not allowing public institutions, like schools, from appearing to endorse any religion on the grounds that church and state must remain separate.

If the justices don’t have a problem letting a public school coach pray in the middle of a football game, with all the pressure that implies for his players, they surely won’t have any problem saying that religious belief matters more than nondiscrimination measures.

It won’t just be a matter of homophobic bakers and florists refusing to provide services for weddings. It will be adoption agencies and employers and landlords. Anyone with a “sincerely held belief” would be able to say that having LGBTQ people in its midst would be a violation of faith.

That’s not a stretch of the imagination. One of the major setback to Obamacare – the coverage for contraceptives – fell because Hobby Lobby, a company, objected on religious grounds. There’s one precedent the Court would respect.

So far, the Court has stuck to very narrow decisions about religious liberty. But this session has shown the the right wing of the Court is nothing more than a wrecking ball. There’s little doubt that nondiscrimination measures will be high on the list of targets. The Court is delivering on Donald Trump’s promise to conservative Christians to reshape America to their liking. That will come at our expense.

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