Attitudes may matter more than originalists would like to admit, but we shouldn't discount the possibility of principled judging.
A Crusader Court?
In Andrew Seidel’s telling of the tale, Supreme Court justices used to recognize that religious liberty primarily means the freedom to believe, build walls of separation between church and state, and find unenumerated rights to privacy and abortion hiding in the penumbras formed by emanations of the Bill of Rights. Alas, in the twenty-first century, this jurisprudential paradise has almost completely been destroyed by a cabal of white Christian nationalists (Crusaders) who desire to privilege conservative white Christians above all others.
“Crusader” groups, like the Alliance Defending Freedom, Family Research Council, and First Liberty Institute, were often “started by a white Christian man, often with early racist leanings.” These and related organizations were funded by the Koch brothers, the “DeVos empire,” and unnamed billionaires with dark money. No one is more important to this Crusade cabal than Leonard Leo, who “runs” both the Judicial Crisis Network and the Federalist Society. He is “the man who orchestrated the hostile takeover of the Supreme Court [emphasis in the original].”
Leo, it turns out, has almost mythical powers. It was he “and his network [that] blocked Merrick Garland’s nomination for nearly a year.” This may come as news to Senate Majority Leader Mitch McConnell. We also learn that Leo “selected” and “supported or even forced” through the nominations of John Roberts, Samuel Alito, Neil Gorsuch, Brett Kavanaugh, and Amy Coney Barrett. This may come as news to Presidents Bush and Trump. Everyone recognizes that the Federalist Society has played a major role in cultivating conservative attorneys and judges, and that its recommendations are taken very seriously by Republican presidents. But Leo is not “choosing” justices, as Seidel asserts more than once in American Crusade: How the Supreme Court is Weaponizing Religious Freedom.
Most of American Crusade focuses on religious liberty and church-state cases that “prove” the Court has been captured by Crusaders. Before getting into these cases, Seidel explains that he largely ignores the legal tests justices have developed to help it interpret the Free Exercise and Establishment Clauses (Sherbert, Lemon, etc.) and instead focuses on the clauses’ “underlying principles,” which are:
- “Religious Freedom is first and foremost about a free mind.”
- “[T]he government can limit religious motivated actions . . . your religion is not a license to violate the rights of others.”
- People may “not use government power or resources to swing their religion.” Put another way, there is a high and impregnable wall of separation between church and state.
From these principles, which Seidel calls “Lines,” he turns to the issue of religious exemptions, which involve “religion exempting itself from the law.” He observes that if “voluntary religious law can always exempt a person from the mandatory civil law, that mandatory law would eventually cease to exist, replaced by religious law.”
Two objections must be raised to this characterization of religious exemptions. First, it is not at all clear that exemptions undermine civil laws. For instance, history shows that American colonial, state, and national governments can allow religious pacifists to avoid combat service without replacing conscription laws with Jesus’ command to “love your enemies” and “turn the other cheek” (unfortunately!).
More importantly, no advocate of exemptions has ever argued that religious citizens get to simply pick and choose which secular laws they will follow. Every proponent of religious exemptions understands that there must be a limiting principle. But what? William Brennan proposed an early version of what eventually became a fine test in his dissent in Braunfeld v. Brown (1961). Contrary to Chief Justice Earl Warren, who wrote the majority opinion, Brennan argued that the Free Exercise Clause requires an exemption for Jewish businessmen who had religious objections to Pennsylvania’s Sunday closing law. The state could only enforce this law against these citizens if it could demonstrate that it had a compelling interest in doing so. In Brennan’s view, and my own, it didn’t.
Seidel does not discuss the Sunday closing law cases, even though they are clear examples of the Supreme Court permitting states to favor Christians over non-Christians. He does offer a brief account of Sherbert v. Verner (1963), but primarily to criticize it. This case involved a Seventh Day Adventist who was fired because her religion prohibited her from working on Saturday, and who was then denied unemployment benefits because South Carolina concluded that she did not have a good reason for refusing to accept work. Seidel thinks South Carolina was correct to deny her benefits, although he criticizes its Sunday closing law which arguably put her in this bind in the first place. By the same token, he thinks Oregon appropriately denied benefits to the two plaintiffs in Employment Division v. Smith (1990). People are free to believe whatever they want about the Sabbath and peyote, he argues, but the First Amendment does not protect their ability to act upon their beliefs and receive unemployment benefits.
In Sherbert v. Verner, William Brennan articulated a test that was used by justices between 1963 and 1990 to adjudicate Free Exercise Clause cases. Amazingly, Seidel does not describe or discuss this test, known as the Sherbert Test, other than to refer to it as “fool’s gold.” Simply put, the test stipulates that when a neutral law keeps someone from acting on a sincerely held religious conviction, the government cannot enforce it against this individual unless it has a compelling reason to do so and acts in the least restrictive manner possible. In this case, the majority held that South Carolina did not have a compelling interest in forcing Sherbert to choose between her religious conviction and a government benefit for which she was otherwise eligible.
In Employment Division v. Smith (1990), a majority of justices rejected the Sherbert Test and held that the Free Exercise Clause requires merely that laws be neutral. Unfortunately for Seidel, in the 1990s conservatives and progressives alike believed that religious liberty should be robustly protected, so Congress passed the Religious Freedom Restoration Act (RFRA) in 1993 to restore the test. The bill was passed 97-3 in the Senate, without a dissenting vote in the House, and was signed into law by President Bill Clinton.
Seidel discusses RFRA in a chapter entitled “Restoring Christian Supremacy.” Although he concedes that some of its advocates were well-intended, presumably including his current employer, Protestants and Other Americans United for Separation of Church and State, he argues that the act has “advanced Christian supremacy.” This is simply not the case. There are excellent reasons to conclude that more non-Christians have been protected by RFRA than have Christians. This makes sense as religious majorities do a good job protecting themselves through the legislative process.
Seidel describes several Roberts Court cases that are regularly highlighted by progressives as permitting discrimination against women, Muslims, and LGBTQ citizens: Burwell v. Hobby Lobby (2014), Masterpiece Cakeshop v. Colorado Civil Rights Commission (2018), and Trump v. Hawaii (2018). Nothing he writes will surprise or change the minds of anyone familiar with these cases, although even those who oppose the outcomes in them might find his rhetoric to be a bit over the top. To give just one example, the Burwell majority is described as “five Catholic men” who “infantilized women and robbed them of their agency.”
Given his thesis, it is striking that Seidel offers no discussion of the Religious Land Use and Institutionalized Persons Act (RLUPA), which was passed by Congress without a dissenting vote in 2000. Important objectives of this statute were to ensure members of minority faiths are able to build houses of worship and live according to their religious convictions if incarcerated. Unfortunately, communities are more likely to object to building mosques than churches, and prisons are far more likely to neglect the dietary needs of religious minorities (e.g., kosher and halal diets) than they are members of majority faiths. Again, there are good reasons to conclude that more non-Christians have been protected by this act than Christians.
Nor does Seidel discuss Holt v. Hobbs (2015), EEOC v. Abercrombie & Fitch (2015), Tanzin v. Tanvir (2020), and Gonzales v. O Centro Espirita Beneficente Unio Do Vegetal (2006). The first two cases protect the ability of Islamic Americans to act according to their religious convictions. The third permitted three Muslim men to sue the FBI agents for damages under RFRA. The fourth involved a small, Brazilian sect that believes its members must use hallucinogenic tea. Although this is a Christian group, it is hard to imagine that it is the sort of group Seidel thinks Crusaders desire to privilege. It is noteworthy that Gregory Holt, AKA Abdul Maalik Muhammad, the Islamic prisoner, was represented by Becket, and other Crusader groups, including ADF, filed briefs on his behalf.
Although the book’s title suggests that its focus is religious liberty, Seidel views any government support of religion to be a violation of non-adherents’ religious liberty. As well, he believes cases such as American Legion v. American Humanist Association (2019), Trinity Lutheran Church v. Comer (2017), and Espinoza v. Montana Department of Revenue (2020) violate his third “Line” and clearly privilege Christianity above other faiths.
In American Legion v. American Humanist Association, a majority of justices upheld the constitutionality of a massive cross erected in 1925 and now on public land. The cross honored the young men from Brandenburg County, Maryland who died in the first world war. Seidel complains that Justice Alito’s majority opinion “laid out a roadmap to preserve these monuments to Christianity’s cultural dominance.” Neglected in his analysis is Alito’s observation that:
It is natural and appropriate for those seeking to honor the deceased to invoke the symbols that signify what death meant for those who are memorialized. In some circumstances, the exclusion of any such recognition would make a memorial incomplete. This well explains why Holocaust memorials invariably include Stars of David or other symbols of Judaism. It explains why a new memorial to Native American veterans in Washington, D. C., will portray a steel circle to represent “the hole in the sky where the creator lives.”
Rather than favoring Christianity above all other faiths, perhaps Alito (and six other justices) merely interpret the First Amendment to permit religious images and language in the public square? As I have argued in these pages, non-Christian images and language are becoming increasingly common in public monuments, and appropriately so.
Unfortunately for Seidel’s thesis, Stephen Breyer and Elana Kagan agreed with Alito that the Brandenburg Cross was constitutional. Indeed, non-Crusader justices agreed with the Crusaders in a number of cases that Seidel believes prove his thesis that white Christian nationalists have taken over the Supreme Court. These include, in addition to American Legion:
- Hosanna-Tabor v. EEOC (2012): Breyer, Kagan, Sotomayor, and Ginsburg
- Trinity Lutheran v. Comer, (2017): Breyer and Kagan
- Masterpiece Cakeshop v. CCRC (2018): Breyer and Kagan
- Fulton v. Philadelphia (2021): Breyer, Kagan, and Sotomayor
- Our Lady of Guadalupe v. Morrisey-Berru (2020): Breyer and Kagan
- Shurtleff v. Boston (2022): Breyer, Kagan, and Sotomayor [Seidel mentions this case, but it hadn’t been decided before the book went to press]
For all of his chutzpa, Seidel cannot bring himself to call the Jewish justices Breyer and Kagan Crusaders, although he does not hesitate to lump Clarence Thomas in with the so-called advocates of white Christian supremacy.
Seidel states several times that his book is not “comprehensive,” which is fair enough. But, in a volume arguing that the Roberts Court has been taken over by Crusaders bent on privileging white Christians above all others, it would seem necessary to address cases where the Court protected the religious liberty of non-Christians or tiny Christian sects. These include at least:
- Gonzales v. O Centro Espirita Beneficente Unio Do Vegetal (2006): unanimous (majority opinion by Roberts, Alito not participating)
- Holt v. Hobbs (2015): unanimous (majority opinion by Alito)
- EEOC v. Abercrombie & Fitch (2015): 8-1 (majority opinion by Scalia, Thomas dissenting)
- Tanzin v. Tanvir (2020): 8-0 (majority opinion by Thomas, Barrett not participating)
If there is a conspiracy among justices to favor white Christianity above all other faiths, the leading conspirators are not doing a very good job. As with many conspiracy theories, the truth is much less interesting. Supreme Court justices take different approaches to interpreting the First Amendment: originalism, textualism, pragmatism, interpretivism, etc. And, in practice, many justices adopt some mix of approaches. At their best, justices make decisions as a matter of principle, not religious tribalism. Hence, Breyer and Kagan voted to uphold the constitutionality of a massive cross on public land, and Roberts, Scalia, Kennedy, Thomas, Ginsburg, Breyer, Alito, Sotomayor, and Kagan all agree that an Islamic prisoner must be permitted to grow facial hair as dictated by his faith (a faith that none of the justices share).
Finally, let’s return to the “overfunded” Christian legal advocacy groups such as the Alliance Defending Freedom, First Liberty, and the Becket Fund for Religious Liberty which Seidel accuses of protecting and promoting conservative white Christianity. According to Daniel Bennett, author of the best study of these groups, of the ten top Christian legal advocacy organizations, all but one (Thomas More Law Center) represents and files briefs on behalf of non-Christians. And Bennett’s study does not include Becket, because contrary to Seidel’s assertions, Becket does not identify itself as a Christian organization.
Seidel references Becket more than any other advocacy group, which is ironic because Becket likely represents and advocates for non-Christians more than any of the groups he identifies as Crusaders (a fact Seidel acknowledges). The organization has been lauded by numerous leaders from different faiths. To give just one example, the late Rabbi Lord Jonathan Sacks avers:
And that is why the Becket Fund matters, because all this—Jews, Christians, Muslims, Buddhists, Sikhs, Hindus—people of all faiths need to come together to know that we are free to live our deepest convictions and thereby enrich the heritage of humankind. So thank you Becket Fund for all you are doing to make this world a little freer and to allow each of us in our own way to light up the public square with the candle and the flame of faith.
If Becket and other advocacy groups are part of a conspiracy to favor Christians above all others, they are not doing a very good job.
In his penultimate chapter, Seidel describes a form of circumcision performed by some Orthodox Jewish sects, and complains that the “government refuses to stop it because of religious freedom.” He specifically suggests that “ritual circumcision” should not be permitted “until the child can consent to having their foreskin removed.” The vast majority of circumcisions in the United States are done for non-religious reasons and would not be covered by a ban on “ritual circumcision.” Such a ban would violate the Free Exercise clause, even as it is interpreted under Employment Division v. Smith. But a state banning a specific religious practice would not seem to violate any of Seidel’s “Lines.” And, in any case, it is not clear how protecting this practice privileges Christianity above other faiths.
Andrew Seidel has every right to disagree with Supreme Court decisions, but he is far too quick to describe justices (and advocacy groups) who disagree with him as being religious and racial bigots. American Crusade is a polemical work that will be appreciated by those who already share his biases and who believe that demonizing one’s opponents is a good rhetorical strategy. Anyone desiring a reasonable, balanced critique of the Roberts Court and/or religious liberty advocacy groups will need to look elsewhere.