海角大神

Last week, in one of the Supreme Court鈥檚 major rulings about the meaning of religious freedom and the separation of church and state, Justice Samuel Alito wrote a passionate account of the ugly anti-Catholic animus that once animated the country鈥檚 education policies.

At issue in the first of 鈥� each hailed by religious conservatives as an important victory for the cause of religious liberty, and decried by critics as allowing religious Americans to infringe on the rights of others 鈥� was the state of Montana鈥檚 no-aid provision, or so-called . Such provisions, long enshrined in 37 state constitutions, restrict public funding from religious establishments and, proponents say, maintain a careful 鈥渨all of separation鈥� between church and state.

In Espinoza v. Montana, Justice Alito described how the nation鈥檚 Blaine amendments were rooted in and a central part of efforts to stave off 鈥渟ectarian鈥� Catholic schools and their foreign ideas and ways of worship.

The court鈥檚 majority said the state鈥檚 no-aid provision violated the First Amendment鈥檚 free exercise clause when it excluded religious schools and families from a tax-credit scholarship program. 鈥淭hey are members of the community too,鈥� the court said in . 鈥淭heir exclusion from the scholarship program here is odious to our Constitution and cannot stand.鈥�

Taken together, all three decisions continue the Supreme Court鈥檚 prioritization of religious liberty as it expands this protected and unique sphere in American social life. On the one hand, the decisions of the current court could be seen as chipping away at the wall of separation 鈥� an extra-textual First Amendment metaphor that often makes religious conservatives bristle.聽

But at the same time, the decisions this term and over the past few years have been refortifying the wall of separation, bolstering its height and thickness even as it expands religious establishments鈥� many exemptions from the country鈥檚 social and legal norms otherwise. As a result, the court鈥檚 left-leaning critics say, many聽women and LGBTQ Americans have found their own freedoms especially curtailed.

All three decisions, too, come amid a rapidly changing U.S. society in which fewer Americans identify as religious and聽where a majority of Americans have welcomed married same-sex couples and others into the country鈥檚 traditional norms and affirmed their equal rights 鈥� a seismic shift few thought possible even a decade ago, experts say.

As a result, 鈥渢raditional religious believers certainly feel under attack,鈥� says Vincent Phillip Mu帽oz, of religion and public life at the University of Notre Dame in Indiana. 鈥淚 mean, there鈥檚 been a huge cultural shift over the last handful of years, an increasing acceptance of LGBT rights, and for many traditional religious believers, they worry that their beliefs are no longer welcome, or even will no longer be tolerated.鈥�

鈥淲hether they鈥檙e right in worrying about that or not, only time will tell,鈥� continues Professor Mu帽oz, whose work was cited by both Chief Justice John Roberts and Justice Clarence Thomas in their opinions in Espinoza. 鈥淏ut certainly that鈥檚 a fear social conservatives have.鈥�

For some liberal-leaning scholars, such fear, rooted in a sense of cultural vulnerability expressed by other minority groups, risks becoming reactionary.聽Like Justice Alito鈥檚 passionate account of what might be called WASP supremacy or a Protestant bigotry toward foreign religious 鈥渙thers,鈥� religious conservatives have in many ways begun to see themselves as a despised and ridiculed class.

鈥淚n their eagerness to assume the mantle of oppression for Catholics and other 海角大神s in the U.S., Justice Alito and other conservatives seem to want to join the current cultural zeitgeist, or this particular cultural moment when we are trying to figure out how to respond to centuries of oppression,鈥� says Jessie Hill, professor at the School of Law at Case Western Reserve University in Cleveland, noting similar recent descriptions of the Tulsa race massacre of 1921.聽

鈥淏ut it鈥檚 really not exactly the same thing in a lot of ways,鈥� she continues. 鈥淥ne of which, and the most obvious is, Catholics have tremendous political and cultural power right now.鈥�

Philadelphia Bible riots

It was not always the case. In his concurring opinion Justice Alito, who, like four others on the nation鈥檚 high court, is Roman Catholic, expressed an implicit sense of grievance and vulnerability.

At the outset, the conservative justice admitted that such historical appeals are not normally part of his interpretive toolbox. In a previous case this year that recounted the ugly history of racism in the jury rules of Oregon and Louisiana, he noted he had dissented, arguing that only the texts of these laws, and not their historical contexts, should constitute the court鈥檚 primary focus.聽

鈥淏ut I lost, and is now precedent,鈥� he wrote. 鈥淚f the original motivation for the laws mattered there, it certainly matters here.鈥�

Including a picture of a famous cartoon from 1871 that 鈥渄epicts Catholic priests as crocodiles slithering hungrily toward American children as a public school crumbles in the background,鈥� Justice Alito described how religious bigotry not only infused the nation鈥檚 elites, but also erupted in episodes of violence and murder.

鈥淚n Massachusetts and elsewhere, Catholic students were beaten and expelled for refusing to read from the King James Bible,鈥� Justice Alito . 鈥淚n New York, a mob destroyed the residence of Bishop John Hughes, who had argued that, if the State was going to fund religious public education, it should also support church schools.鈥澛�

Most notorious were the Philadelphia Bible riots in 1844: 鈥淢onths of scaremongering broke out into riots that left two of the city鈥檚 Catholic churches burned and several people dead,鈥� he continued. Among the proponents of Blaine amendments, he also noted, was the Ku Klux Klan.

Changing U.S. society

Even before the Supreme Court鈥檚 landmark Obergefell decision in 2015, which legalized same-sex marriage in all 50 states, the rapid pace of social change led many religious conservatives to emphasize their influence in the federal judiciary. They sought out legal pathways to opt out of the ritual aspects of same-sex weddings in the public sphere, even while seeking more room to freely exercise their聽deeply held religious convictions unencumbered by certain civil rights protections for sexual minorities and women.

鈥淲hile these rulings will certainly disappoint those who want a stronger wall of separation between church and state, these conservative Supreme Court outcomes are exactly why evangelicals so strongly support President Trump,鈥� says Mark Miller, director of the law and society program at Clark University in Worcester, Massachusetts. 鈥淭heir top priority is getting conservative judges on the courts who will read these constitutional clauses in ways that the religious right favors.鈥澛�

In the final week of the Supreme Court鈥檚 current term, such priorities have appeared to pay off. In the first of two opinions issued Wednesday, the court continued to reshape its religious freedom jurisprudence, expanding a doctrine known as the 鈥渕inisterial exception鈥� and bolstering religious institutions鈥� exemptions from general employment discrimination laws.

Courts should not be able to intervene in a religious institution鈥檚 employment disputes, the justices in Our Lady of Guadalupe School v. Morrissey-Berru. Nor, more significantly, should courts question whom religious institutions deem 鈥渕inisterial鈥� and thus exempt from employment discrimination protections.

In a dissent, Justice Sonia Sotomayor, who is also Catholic, joined by Justice Ruth Bader Ginsburg, contrasted this ruling with the Espinoza decision last week, and focused on the vulnerabilities of women, LGTBQ people, and others affected by expanding exemptions for the nation鈥檚 religious groups.聽

鈥淩ecently, this court has lamented a perceived 鈥榙iscrimination against religion,鈥欌�� she wrote. 鈥淵et here it swings the pendulum in the extreme opposite direction, permitting religious entities to discriminate widely and with impunity for reasons wholly divorced from religious beliefs.鈥�

鈥淭he inherent injustice in the court鈥檚 conclusion will be impossible to ignore for long, particularly in a pluralistic society like ours,鈥� she added.

End of the 鈥渂alanced approach鈥�?

Wednesday鈥檚 second ruling, a 7-2 decision holding that businesses and other entities can claim religious and moral exemptions from the Affordable Care Act鈥檚 contraceptive mandate, follows a similar theme, according to some justices.

There were no constitutional issues at question in the case, Little Sisters of the Poor v. Pennsylvania, and the majority held that the Trump administration鈥檚 expanded exemptions were lawful. In a dissent, however, Justice Ginsburg, joined by Justice Sotomayor, accused the court of departing from its long-held 鈥渂alanced approach鈥� to ensuring that 鈥渢he religious beliefs of some [don鈥檛] overwhelm the rights and interests of others who do not share those beliefs.鈥�

鈥淭oday, for the first time, the Court casts totally aside countervailing rights and interests in its zeal to secure religious rights to the nth degree,鈥� she added.

But Professor Mu帽oz points out that the Supreme Court also issued a groundbreaking and far-reaching victory for LGBTQ rights this June when it redefined 鈥渟ex鈥� and thus greatly expanded civil rights protections to include sexual minorities in the workplace.聽

鈥淚t鈥檚 hard for people to remember that, originally, the idea of religious exemptions and, you know, carving out a robust sphere of protection for religious individuals and institutions, that was liberal jurisprudence 50 years ago,鈥� he says, noting that state and federal began as efforts to shield the religious rituals of Native peoples from certain generally applicable drug laws.聽

鈥淚n a way, this has been the year of nondiscrimination 鈥� nondiscrimination for progressive groups as well as religious groups,鈥� continues Professor Mu帽oz. 鈥淎nd it鈥檚 not so obvious that this is against the wall of separation.鈥�