Subverting the Supreme Court

COMMENTARY: Hardline secularists are confident that, one way or another, they can outmaneuver the highest court in the land.

U.S. Supreme Court in Washington, D.C.
U.S. Supreme Court in Washington, D.C. (photo: Unsplash)

The Supreme Court’s current term will soon come to an end. We’re likely to see victories for a Christian wedding-website designer with traditional views on marriage and a Sabbatarian Christian mailman who cannot work on Sundays. 

Progressive politicians and their media allies are getting ready to throw a fit. Their ritualized outrage every time the Court defends religious freedom has become so predictable that it’s tempting to ignore it. After all, the Court has the final say, doesn’t it?

Not so fast. 

The more often the Supreme Court protects our religious freedom — and it’s done so fairly consistently in the last few years — the more energy and money the doctrinaire left pours into its attempts to subvert the Court’s rulings. Hardline secularists are confident that, one way or another, they can outmaneuver the highest court in the land. And at least some of this confidence is justified — because, sad to say, they have the federal government on their side. 

Here’s a classic example of their sneaky tactics: The Little Sisters of the Poor, a religious order of nuns dedicated to serving the elderly poor, remain vigilant in protecting their employee health-insurance plans from the bloody hands of the abortion industry. 

Following a 2016 directive from the Supreme Court, the Trump administration crafted commonsense rules exempting entities with religious or moral objections from the demands of the Affordable Care Act’s “Contraceptive Mandate.” The product of agency regulation during the Obama administration, the mandate directs covered employers to offer health insurance for women’s birth control, including abortifacients. In 2020, the Supreme Court allowed the religious and moral exemption rules to stand. 

But the Biden administration, egged on by its courtiers in the mainstream media, was unable to let this issue go. Now, it has proposed new rules that would remove exemptions for employers who oppose the contraceptive mandate on moral grounds and would create an “independent pathway” for individuals enrolled in plans offered by pro-life religious employers, enabling them to access contraceptive services through a willing provider without charge. 

As I say, it’s sneaky. But you have to be if you’re determined to circumvent ambiguous rulings by the Supreme Court. And, fortunately for the progressive lobby, its activists are embedded in a secularist administration with vast executive powers and unlimited access to top-flight legal representation. 

Cardinal Timothy Dolan, the archbishop of New York and chairman of the U.S. Conference of Catholic Bishops’ Committee for Religious Liberty, calls the administration’s move “disheartening.” As he puts it, with welcome bluntness, “It is past time for HHS to leave well enough alone in this regard.” 

Indeed, it is. But this administration is incapable of leaving well alone when liberal doctrines are challenged, and so religious and other employers will be forced into expensive litigation in defense of the First Amendment — and the sanctity of human life. 

Another continuing conflict involves religious schools and their exclusion from school-choice initiatives. Last summer, the Court ruled that the state of Maine could not exclude these schools from a voucher program for students living in rural areas of the state that do not have their own public high school to attend private or nearby public schools. The case came just two years after the Court struck down Montana’s attempt to bar religious schools from participating in its private-school tax-incentive program. Like Montana’s, Maine’s exclusionary rule also violated the free exercise rights of parents. 

The state of Maine couldn’t bear the thought of being overruled, and so it took a page from the Biden administration’s court-subverting playbook. The result? State officials are once more trying to keep private religious schools from receiving tuition-assistance-program funds by adding an eligibility requirement that they must comply with the state’s “LGBT” anti-discrimination policy. 

Following the Supreme Court’s decision, Maine Attorney General Aaron Frey said he was “terribly disappointed and disheartened,” insisting that religious schools were still ineligible for the tuition program because of their religious stance on sexuality and gender and promising to work with state lawmakers to “ensure that public money is not used to promote discrimination, intolerance, and bigotry.” 

The upshot is that Maine has erased an existing exemption for religious schools that wish to participate in the tuition-assistance program from the nondiscrimination provisions of the state’s Human Rights Act. 

Fortunately, one Christian school in Bangor isn’t giving in. It is suing the state for this latest malicious attempt to exclude religious schools from participating in the state’s voucher program. 

Finally, Christian adoption and foster-care agencies are having to fight for their very existence. Progressive state governments have targeted these groups if they are unwilling to abandon church teaching that marriage is between a man and a woman and consequently are unable to certify same-sex couples as foster or adoptive parents. 

Two terms ago, the Supreme Court handed a unanimous victory to Catholic Social Services of Philadelphia based on the terms of their agreement with a city. The agency and the city have since arrived at a settlement agreement that exempts the agency from broadly defined antidiscrimination policies. 

But that wasn’t the end of the story. Many evangelical Christian and Catholic adoption and foster-care agencies shuttered their doors before the Church’s victory in Philadelphia. It’s time for them to reopen — but, it goes without saying, their progressive enemies have other plans. If these agencies want to take advantage of the Supreme Court’s ruling, they will first have to run the gauntlet of liberal lobbyists. That means going to court. 

Faced by this endless war of attrition, it’s tempting to give in to despair. Fortunately, our history shows that attempts to nullify the Supreme Court’s defense of civil rights often end in humiliating defeat. 

Just think back to the years after the Court unanimously decided Brown v. Board of Education, overturning the noxious doctrine of “separate but equal.” Segregationists played every trick in the book to undermine the ruling. Defenders of civil rights fought back hard: The NAACP sued hundreds of racist school districts that thought they could ignore Brown

And it worked. Eventually, the Court ruled that segregation be dismantled “root and branch” and guaranteed that federal district courts would do so.

The great American abolitionist Wendell Phillips wrote that “eternal vigilance is the price of liberty.” Unfortunately, it doesn’t come cheap. So be it.