Fair’s Fair — Even in the Culture War

The end of the Supreme Court’s term brought two rulings unquestionably favorable to religious interests.

A U.S. flag flies in front of the Thurgood Marshall United States Courthouse in New York City.
A U.S. flag flies in front of the Thurgood Marshall United States Courthouse in New York City. (photo: mariakray / Shutterstock)

According to recent opinion polling, most Americans think the Supreme Court is friendly to religion. Supposing that view of the court is correct — and, with certain qualifications, I think it is — a reasonable person will naturally see this friendliness as a good thing. 

Since when, though, has everyone been reasonable?

The end of the Supreme Court’s term brought two rulings unquestionably favorable to religious interests. Yet in some quarters that was greeted with grumbling and overt dissent.

That was especially so with the Court’s 6-3 decision that the state of Colorado can’t force a Christian website designer named Lorie Smith to act against her religious faith by designing a site to celebrate a same-sex wedding. 

Prominent among the critics was the American Civil Liberties Union, which called the ruling “fundamentally misguided.” The civil liberties group had filed a friend of the court brief arguing that the website designer should indeed be coerced, and it promised to continue its good fight on behalf of coercion.

If that sounds like the ACLU is violating its own stated principles, be advised that it simply mirrors a more generalized flipflop by some groups prepared to pay just about any price in the currency of violated consciences if the higher good of LGBTQ+ requires it. The fundamental principle operative here is simple: Whatever the great cause of gay rights wants, it must have.

At the Supreme Court’s direction, the case was argued in reference to the First Amendment’s free speech guarantee rather than religious free exercise. (In the eyes of the law, things like designing websites and baking wedding cakes are considered forms of expression that qualify as “speech.”) 

While this approach undoubtedly helped give Smith a win, it left unanswered whether an individual or group engaged in a commercial enterprise not qualifying as “speech” could successfully invoke religious liberty as the basis for saying “no” to LGBTQ+ claims.

The court’s other end-of-term decision touching on religion, as the justices’ unanimity suggests, was a less contentious affair. The dispute involved a Pennsylvania mail carrier who tangled with the U.S. Postal Service over his refusal to make Sunday deliveries because of his religiously motivated conviction that working on the Sabbath is wrong.

Though not reversing the Court’s own less generous interpretation of civil rights law in a ruling several years ago, the justices adopted a more worker-friendly standard regarding the obligation of an employer to accommodate employee religious practices, then sent the case back to the lower court for reconsideration in this light.

In tandem with other rulings against things like racial preferences in college admissions and President Biden’s proposal for student loan forgiveness, the decision in the website designer’s case evoked familiar demands to curb the Court by adding more justices to create a liberal majority and term-limiting the justices. Neither idea has any chance of enactment now, but the Supreme Court is certain to be an issue in next year’s presidential campaign.

Meanwhile, people with long memories recall that when the Supreme Court was under liberal control and regularly produced decisions accordingly, no serious thought was given to changing its ideological makeup by fundamental structure change.

Nor should it be now. Separation of powers is a basic principle of American government. Liberals have had their day — a very long one — when the Supreme Court repeatedly sided with them in the culture war by approving things like abortion and same-sex civil marriage. Now, with the other side in charge, the left had best be patient. Fair’s fair, even in a culture war.