Timing?
An Extraordinary Winning Streak for Religion at the Supreme Court
WASHINGTON — “For many today, religious liberty is not a cherished freedom,” Justice Samuel Alito told the Federalist Society, the conservative legal group, in November. “It pains me to say this, but, in certain quarters, religious liberty is fast becoming a disfavored right.”
Those quarters do not include the Supreme Court, which has become far more likely to rule in favor of religious rights in recent years, according to a new study that considered 70 years of data.
The study, to be published in The Supreme Court Review, documented a 35-percentage-point increase in the rate of rulings in favor of religion in orally argued cases, culminating in an 81% success rate in the court led by Chief Justice John Roberts.
“Plainly, the Roberts court has ruled in favor of religious organizations, including mainstream Christian organizations, more frequently than its predecessors,” wrote the study’s authors, Lee Epstein of Washington University in St. Louis and Eric A. Posner of the University of Chicago. “With the replacement of Ruth Bader Ginsburg with Amy Coney Barrett, this trend will not end soon and may accelerate.”
The kinds of cases the court is hearing have changed, too. In the Warren court, all of the rulings in favor of religion benefited minority or dissenting practitioners. In the Roberts court, most of the religious claims were brought by mainstream Christians.
The five most pro-religion justices all sit on the current court, the study found.
“The justices who are largely responsible for this shift are Clarence Thomas, Samuel Alito, Neil Gorsuch, John Roberts and Brett Kavanaugh,” the study’s authors wrote. “While there are some differences among these justices, and Kavanaugh has been involved in only a handful cases, they are clearly the most pro-religion justices on the Supreme Court going back at least until World War II.” All are Republican appointees.
In the last term alone, the court sided with Christian religious groups in three argued cases. The court ruled that state programs supporting private schools must include religious ones, that the Trump administration could allow employers with religious objections to deny contraception coverage to female workers and that employment discrimination laws do not apply to many teachers at religious schools.
And the court will soon decide whether Philadelphia may bar a Catholic agency that refused to work with same-sex couples from screening potential foster parents.
After Barrett joined the court, it changed positions on the one question on which religious groups had been losing: whether governors could restrict attendance in houses of worship to address the coronavirus pandemic.
There has been a similar shift in the entire federal judiciary in cases on the constitutional protection of the free exercise of religion.
Protecting that right, as Alito pointed out in his speech, used to be a bipartisan commitment. In 1990, when the Supreme Court cut back on protections for free exercise, with Justice Antonin Scalia writing the majority opinion, Congress responded with the Religious Freedom Restoration Act.
“The law had almost universal support,” Alito said. “In the House, the vote was unanimous. In the Senate, it was merely 97 to 3, and the bill was enthusiastically signed by President Clinton.”
Earlier studies, covering 1996 to 2005 and 2006 to 2015, found that judges’ partisan affiliations, as reflected by political parties of the presidents who appointed them, were not significantly tied to their votes in free exercise cases.
Zalman Rothschild, a fellow at the Stanford Constitutional Law Center, updated that data in a second study, to be published in The Cornell Law Review. He found that things had changed.
“The politicization of religious freedom has infiltrated every level of the federal judiciary,” Rothschild wrote.
In the five years through the end of 2020, he wrote, federal judges’ partisan affiliations had become powerfully correlated to their votes. “And when the pandemic struck, resulting in widespread lockdowns of religious houses of worship,” he wrote, “the unprecedented number of constitutional free exercise cases brought in such a condensed span of time forced that partisanship into sharp relief.”
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The Christian Invention of the Human Person
The most important lesson that the study of history teaches us is contingency. Things did not have to turn out the way they did. Take, for instance, the answer that our civilization has historically given to the most important question of all: “What does it mean to be a human being?” Ever since the Enlightenment, many people in the West have had the impression that answering this question is easy, that it’s just a matter of observing human behavior empirically across time and space and then abstracting a few universal maxims from the data. This is our modern faith: that we can read the truth about ourselves in the record of nature the way we read a story in a book.
The seminal example of this is the preamble to the Declaration of Independence, written at the high meridian of the Enlightenment by one of its most incandescent minds:
We hold these truths to be self-evident, that all men are created equal, that they are endowed by their Creator with certain unalienable Rights, that among these are Life, Liberty and the pursuit of Happiness.
For Jefferson, and for us who live today by the light of his words, it’s “self-evident” that “the mass of mankind has not been born, with saddles on their backs, nor a favored few booted and spurred, ready to ride them.” But most people in most places at most times have not thought about human beings like this. The idea that we are all equal, unique personalities, each possessed of unfathomable dignity and inviolable rights, is a rare and relatively parochial one. The world once existed without it (as much of the world still does today) and could easily do so again if we forget where that idea came from and what has sustained it for so long.
We can trace the ancestry of the word “person” back to the ancient Greek word prosopon, which means “mask.” It was used at first in the context of Greek tragedy. Actors wore the physical prosopon of the role they played in a dramatic production. But it soon took on a political and social meaning, especially in Roman society. The Latin word for prosopon is persona, from which our English word is derived. According to the Roman usage, one’s persona was one’s social and legal role within the community. This role varied wildly from one person to the next, from nobleman to senator to shopkeeper to servant, and it didn’t encompass all humans equally the way the word “person” does now. Different social stations were thought almost to be different species, sharing nothing in common, and no one was thought to have any kind of individual existence apart from the role they played in the state. Roman slaves, for instance, were habitually referred to as non habens personam: literally, “not having a person” or “not a person,” because their social functions were so menial and tool-like. Who they actually were as “people” underneath, as we now understand the word, didn’t matter at all.
The Greek dramatic and the Roman political usages of the word have one important thing in common. In neither case is the unique individual who’s behind the mask or who’s playing the social role assigned to him thought to be significant in the least. Metropolitan John Zizioulas puts it like this: “Many writers have represented [ancient] Greek thought as essentially ‘non-personal.’ In its Platonic variation, everything concrete and ‘individual’ is ultimately referred to the abstract idea which constitutes its ground and final justification.”
As they themselves saw it, people in the ancient world really existed only to the extent that they participated in some larger project, whether on the stage or in the city, which constituted their “ground and final justification.” As Zizioulas goes on to write, “identity – that vital component of the concept of man, that which makes one man differ from another, which makes him who he is — [was] guaranteed and provided by the state or by some organized whole.” For this reason, the historian Larry Siedentop writes that in the ancient city, “there was no notion of the rights of individuals against the claims of the city and its gods. There was no formal liberty of thought or action. . . . Citizens belonged to the city, body and soul.” If the individual had any value at all, it was only by reference to some organized collective.
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yep, those addicted to crotch shots, tits and ass. Sex addicts. Can't see past their own egos, to realize SEX was the weapon most easily used to control.