Rebecca Markert: Religious liberty under threat — Christian capture of our federal judiciary

Rebecca Markert
Supreme Court cartoon

This column was first published on FFRF’s blog site on Oct. 27.

By Rebecca Markert

A little more than a year ago, Justice Amy Coney Barrett was confirmed to the U.S. Supreme Court. It was President Trump’s third and final appointee to the high court. Her confirmation completed the Christian nationalist takeover of the court and tipped the scales in favor of a privileged status for religion in our country.

The Trump administration, with the help of Senate Majority Leader Mitch McConnell, rammed through judges at an alarming rate in 2020. Despite a raging pandemic and economic uncertainty, the only priority appeared to be packing the federal bench. Trump judges are young, ultraconservative and fill 30 percent of the seats on the federal bench, positions they’ll hold for life. They’re also overwhelmingly Christian nationalists, which the Freedom From Religion Foundation warned about in a report issued last year.

Among those 230 or so judges are three Trump-appointed Supreme Court justices.

2020 court rulings

Since those appointments, we’ve seen the Supreme Court, through the shadow docket, block Covid restrictions in California and New York, and upend 50 years of precedent by greenlighting Texas’ abortion ban after six weeks of pregnancy. The high court also continues to expand religious privilege, particularly to Christians, through increased exemptions.

As pointed out in FFRF’s “Religious Liberty Under Threat” report, Amy Coney Barrett’s appointment to the bench already flipped it on an issue of life or death — public health restrictions during the Covid-19 pandemic. In July 2020, the court let public health restrictions on church services stand in Nevada and California. Only four months later, after Barrett’s confirmation, the court flipped on the issue. In Roman Catholic Diocese of New York v. Cuomo, the court would not allow New York to enforce limits on church gatherings because of claimed religious discrimination. In April 2021, the high court would rule again on the issue of Covid restrictions in California — this time approving religious gatherings in homes in the Tandon v. Newsom case. In neither case did the Constitution change; the only difference was who was on the court.

The idea that any time the government grants an exemption to the law, it is obligated to grant an exemption for religion was expanded in Fulton v. City of Philadelphia. There, Catholic Social Services, one of 30 agencies that Philadelphia contracted with to vet foster families for abused and neglected children in new homes, claimed the city violated its free exercise rights by denying them a contract for foster care services. Philadelphia stopped contracting with Catholic Social Services because it refused to work with same-sex couples for foster care screening services, in violation of the city’s anti-discrimination policy. In a 9-0 ruling, the Supreme Court ruled that the city infringed on the Catholic agency’s “free exercise” rights.

In reviewing the contract, the court focused on a provision that gave the commissioner “sole discretion” to grant exceptions. Though the commissioner had never given an exemption for the nondiscrimination policies, the court found that because individual exceptions existed elsewhere, the law was not of general applicability. 

Though the ruling was limited to the facts of this specific case, it continues the alarming trend among justices of expanding privileges to Christians. And the effect of the ruling is this: Catholic Social Services is still eligible to participate in the foster care program certifications, and still allowed to discriminate against same-sex couples.

The Supreme Court recently heard oral arguments in the cases United States v. Texas and Whole Woman’s Health v. Jackson, which both challenge the state law banning abortion before most people even know they’re pregnant. The law not only denies pregnant people their constitutional right to an abortion, but also favors religious ideology over evidence-based medicine. SB 8, the harshest abortion restriction in the country, was crafted with help from Texas Right to Life, a Christian anti-abortion group which describes itself as a group that “legally, peacefully and prayerfully protects the God-given right to life of innocent human beings from fertilization to natural death.” When Gov. Greg Abbott signed the anti-abortion law, he commented, “Our creator endowed us with the right to life and yet millions of children lose their right to life every year because of abortion.”

Religious ideology

There is no science behind the abortion ban, only religious ideology, an attempt to legislate biblical law into our secular law. FFRF has always viewed reproductive justice as a state/church issue and an overwhelming majority of FFRF members support the right to choose.

The court also is poised to move the needle even further in favor of Christian privilege during this upcoming term. At present, the court has or is set to hear three cases involving religious freedom claims and another case on abortion.

On Nov. 9, the court heard oral arguments in Ramirez v. Collier, a death penalty case out of Texas. There, a condemned person is claiming a free-exercise right to have a member of the clergy not only present at his execution, but also in the room praying over him and laying his hands on him at the moment of death, in violation of prison protocols. This case follows a number of death penalty cases from Alabama and Texas considering whether those on death row are entitled to religious clergy in the execution chamber. 

FFRF submitted an amicus brief in this case arguing that the death penalty is first and foremost unconstitutional, and pointing out the absurdity of quibbling over a condemned man’s free exercise rights moments before he’s put to death and stripped of those rights forever. FFRF also argued that the court should allow any person facing capital punishment a source of comfort at their execution regardless of religious belief.

On Dec. 8, the Supreme Court considered Carson v. Makin, a case involving a state-backed tuition program in Maine. The program allows rural families with no local public school to get tuition assistance from the state to send their children to private schools. Two families sued because they wanted assistance to be used at private Christian schools that indisputably teach religion. Coming on the heels of Espinoza v. Montana, this case could result in the court mandating the use of public funds to teach a “Christian and biblical worldview” ultimately obliterating the separation of state and church.

The court is also scheduled to consider Shurtleff v. Boston, a case from Boston, which will determine whether the city violated the free speech clause by refusing to fly a Christian group’s blatantly sectarian flag. The organization, called Camp Constitution, had demanded that the city display the Christian flag, which features a blue rectangle in the corner with a blood-red Latin cross. This is the same flag that was paraded by Christian nationalists, intermingled with symbols of white supremacy, during the Jan. 6 Capitol insurrection. It’s another move by this highly activist court in taking cases that advance Christian privilege.

The Supreme Court also heard arguments on another major abortion case on Dec. 1. Dobbs v. Jackson Health Organization involves Mississippi’s 15-week abortion ban. FFRF submitted an amicus brief with the court, arguing that religion has always been at the heart of abortion bans. This is evidenced in Mississippi by various highly sectarian religious statements that Mississippi legislators made in support of the legislation, such as: “I believe that life is precious and children are a gift from God” and “I am not God, but I serve a God who says life is in the blood. And this bill will protect those lives.”

This case directly challenges the constitutionality of previability abortions long protected by the high court. Barrett is an outspoken anti-abortion proponent who has received widespread praise from anti-abortion groups and organizations, giving the Supreme Court a securely anti-abortion majority. The court has long established that the right to abortion exists up to viability. If the court allows this ban to stand, it will upend decades of precedent and end fundamental constitutional rights for pregnant people all over the country.

What to expect

Christian right legal organizations are suing government entities all over the country regarding Covid-19 vaccine mandates and seeking religious exemptions to those mandates. It’s almost inevitable that one of those cases will go before the court. 

A case involving prayer by a public high school football coach in Washington is also pending request for review at the Supreme Court. The theocratic Liberty Institute is representing Joe Kennedy, former Bremerton High School football coach, who was ordered to stop praying with students. He refused, was placed on administrative leave, and eventually was not re-hired. The 9th U.S. Circuit Court of Appeals ruled unanimously in favor of the school district, but Kennedy filed for certiorari, basically claiming that the circuit court ruled incorrectly. It would not be surprising to see the Supreme Court take up that case as well.

As pointed out in FFRF’s report last year, we’re only seeing the beginning of radical changes to how religious liberty is defined in America. What’s shocking is the lightning speed at which they’re changing law. As the Supreme Court hands down cases, lower Trump appointees will be empowered to “bless” other governmental favoritism of religion.

The federal courts have been hijacked — and must be restored. Expanding the number of federal judges is decades overdue, with many federal cases taking many years to complete because there are too few judges.

Congress has the ability to fix this problem by expanding the federal judiciary at every level. Every other avenue of progress will be blocked until our broken court system is addressed. Americans should bombard their members of Congress with calls to fix this miscarriage of justice immediately.

FFRF will continue to monitor and report on Christian nationalist judges who are intent on turning our hallowed principles on their head. 

Check FFRF’s Christian nationalist page (
) to get updates on the captured courts. FFRF remains committed to fighting for the cherished constitutional principle of separation between state and church, our secular government and true religious freedom for all.

Rebecca Markert is FFRF’s legal department director.