Democratic lawmakers are calling for an investigation following a New York Times report that in 2014 Supreme Court Justice Samuel Alito disclosed the outcome of a closely watched religious liberty case, Burwell v. Hobby Lobby, during a dinner with an evangelical activist before the ruling. down.
Alito denies that claim, but Senate Judiciary Committee Chairman Dick Durbin, D-Ill., said the committee was reviewing “these serious allegations.” Determining whether Alito revealed the Hobby Lobby result is important, but it won’t solve the court’s most serious problem: Although he claims to be a neutral arbiter and non-partisan of the law, his conservative majority has been deliberately cultivated to extend religious freedom to conservative Christians. to the detriment of the rights of those deemed less worthy of protection.
The possible revelation of the Hobby Lobby decision – in which the court ruled that private companies can require religious exemptions from the Affordable Care Act’s requirement that employer health plans cover contraceptives – is the second. leaked from the Supreme Court in the news this year. The other involved an even bigger victory for the religious right: the unsolved mystery of who had leaked a draft ruling in Dobbs v. Jackson Women’s Health Organization overriding abortion rights. Both decisions were written by Alito.
The crux of the Times story is that the alleged leak allowed Reverend Rob Schenck, at the time a Capitol Hill-based intermediary between evangelical donors and major political players, to help Hobby Lobby craft a campaign to public relations before the decision. The focus on his efforts, while an interesting look at the operations of a (now repentant) activist, obscures the much larger scope and scale of fundraising, activism and litigation of the wider Christian right over the past four decades.
The arts and crafts chain Hobby Lobby had already been the subject of an intense public relations strategy to portray the contraceptive coverage requirement as a serious threat to the religious freedom of pious business owners. Even before the litigation, the store was a beloved brand in the Bible Belt and beyond. Its billionaire founder, David Green, has long been a respected figure and major donor in the evangelical world. Even without Schenck’s help, Hobby Lobby had already become the poster child for a burgeoning campaign to convince the court to expand religious freedom rights for conservative Christians.
When, in 2012, evangelical and Catholic activists attacked the Affordable Care Act’s contraception mandate, the notion of corporate religious rights was new legal theory. But when the court held closing arguments two years later, it was immediately clear that a majority of the court had embraced that theory. What changed? Hobby Lobby became a landmark Supreme Court decision thanks to a well-funded network of lawyers and activists, and their shared ideologies with the judges who were selected for their positions on the issues most important to religious groups. conservatives.
Before landing in the Supreme Court, Hobby Lobby won its case in the 8th Circuit Court of Appeals in an opinion written by future Supreme Court Justice Neil Gorsuch, whose nomination was announced by defenders of this newly expanded religious freedom. The company was represented by Kyle Duncan, an attorney for the Becket Fund for Religious Liberty. Members of that organization’s board of directors include Leonard Leo, the money-backed black activist whose list of suggested judicial nominees was adopted by then-President Donald Trump, who nominated Duncan to the 5th Circuit Court of Appeals.
In recent decades, right-wing activists have managed to erode the separation between church and state with increasing speed. In Kennedy v. Bremerton School District, decided earlier this year, the court sided with a high school football coach demanding to pray with players on the field after games. These lawyers and activists have opened the door for religious business owners to refuse to serve LGBTQ people, as in 2018 Masterpiece Cakeshop v. Colorado Civil Rights Commission, in which the court ruled for a baker who refused to bake a cake for a gay man. wedding. This door could open wider in the upcoming 303 Creative v. Elenis, which concerns a web designer’s claims that a non-discrimination law violates his free speech rights. Leo has been open about his hostility to the Supreme Court’s precedent legalizing contraception and same-sex marriage. In a deal in Dobbs, Judge Clarence Thomas echoed that hostility, even criticizing the 2003 decision in Lawrence v. Texas that made anti-sodomy laws unconstitutional.
Hobby Lobby has been a key inflection point in an ongoing and largely successful right-wing campaign to undermine the separation of church and state and expand the recognized religious rights of conservative Christians who claim that abortion, contraception and LGBTQ rights infringe on their religious freedom. Alito’s dinner with Schenck’s emissaries is a symptom of warm relations, but the broader activism that has shaped the court is a far greater threat to the court’s drive to protect the rights of all Americans. Requiring magistrates to adhere to a code of judicial ethics to combat conflicts of interest and the appearance of bias would be a welcome reform. But fixing the undemocratic ills of the Supreme Court will require much more.
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