Last week, a ruling out of the Seventh Circuit presented the latest example that this country is facing an increasingly theocratic judiciary seeking to expressly favor religion and religious citizens at the great expense of nonbelievers. To be clear, the case is only at the preliminary injunction stage, so the Seventh Circuit panel was not making a decision on the merits. However, where the panel did make legal conclusions, they were downright alarming. For example, Judge Diane Wood declared that the court is convinced “that the speech that accompanies religious exercise has a privileged position under the First Amendment.” If your alarm bells went off at the mention of a “privileged position” within the First Amendment just wait, because somehow this opinion gets even worse:
We conclude by explaining that a comparison between ordinary speech (including political speech, which all agree lies at the core of the First Amendment) and the speech aspect of religious activity reveals something more than an “apples to apples” matching. What we see instead is “speech” being compared to “speech plus,” where the “plus” is the protection that the First Amendment guarantees to religious exercise.
Declaring that religious expression is entitled to some special, privileged status within the First Amendment that is superior to political speech is incredibly difficult to justify. For one thing, the free speech law that I thought we were all operating under, seems pretty clear that unless it is determining whether certain speech falls into a narrowly defined list of historical exceptions, government is not supposed to be in the business of making viewpoint or content-based restrictions. Yet, if courts are granting better treatment to expressive gatherings simply because they contain religious speech than other expressive gatherings such as political ones, this would seem to be a pretty clear-cut case of content-based restriction. Furthermore, there is a long line of cases that contradict this supposed special status of religious speech where the Supreme Court has declared that religious speech and nonreligious must be treated equally.
The decision by this Seventh Circuit panel, however, is just one of several high-profile pandemic restriction cases involving religious gatherings. As I wrote about before, the argument used in a California case that church gatherings must be regulated in the same way as dissimilar activities such as commercial retail, was rightly rejected. Although another case out of Nevada was much more complicated, the fact that the church was arguing for the court to adopt a standard of impermissible religious discrimination that is facially easier to satisfy than racial discrimination should be viewed as a major flaw. Moreover, the other problem with the argument used by the church in Nevada that churches and casinos should be treated the same was, as the district court repeatedly said, any comparison of the state’s regulatory regime when it came to churches and casinos revealed that the state was much more “intrusive and expansive” with casinos.
Although churches have repeatedly lost these pandemic cases, however, it is important to point out that no court ruled against a church based on the premise that secular gatherings were in possession of some special or enhanced constitutional protection that religious ones were not entitled to. Therefore, whatever you think about the cases where the churches lost, none should be viewed as more alarming than the Seventh Circuit opinion which declared the Constitution favors religious gatherings and expression more than secular ones.
Of course, no one should be surprised with the Seventh Circuit panel either. The myth that this country was conceived as a religious (Judeo-Christian) exceptional country has long been accepted as fact by wide swaths of the population. I see the most recent iteration of this myth being trotted out time and again in the form of a quote taken from a speech given by John Adams declaring that: “Our Constitution was made only for a moral and religious People. It is wholly inadequate to the government of any other.”
The “thing” about this quote though, is nothing in the Constitution’s text supports such a view. In fact, given that the original Constitution prohibits requiring a religious oath to hold office, Adams’ view directly contradicts the plain language of the document (See U.S. CONST. art. VI, § 1, cl. 3: “(N)o religious Test shall ever be required as a Qualification to any Office or public Trust under the United States”). In practical terms, expressly prohibiting a religious test for office amounts to a direct statement that government cannot favor religion. It takes a massive, unsubstantiated leap therefore, and in direct contradiction to plain language, to argue that our government was made only for religious people, or that it may favor religion over nonreligion.
The bottom line is, even if your intentions are not malicious, granting special favor in the law to religion or trotting out inaccurate quotes that claim our government was only intended for religious people in a modern society where nonbelievers make up an ever increasing share of the population is damaging. The Constitution is a document wholly adequate to govern believers and nonbelievers, alike to the mutual benefit of both. But it cannot function that way as long as those who operate it insist, wrongly, that the document favors them, to the exclusion of others who do not share their religious beliefs.
Tyler Broker’s work has been published in the Gonzaga Law Review, the Albany Law Review, and is forthcoming in the University of Memphis Law Review. Feel free to email him or follow him on Twitter to discuss his column.