Americans Must Stop Thinking of the United States Supreme Court as a Court of Law

J. Kennedy leading an explicitly Christian prayer with his players at a public high school. The Supreme Court majority has dishonored itself by overriding principle and precedent.

Americans must stop thinking of the United States Supreme Court as a court of law. It’s a court bent on giving political whims the force of law and on converting America into a Christian nation. 

Some of its most significant recent decisions hasten that conversion. Last week, the court compelled taxpayers to fund “religious indoctrination” at Christian schools. It then forced a narrow, conservative Christian religious belief onto the entire country when it abolished the constitutional right to abortion. On Monday, it effectively allowed public school teachers and staff to coerce your children into joining their Christian prayers in a decision that was a weird mix of alternative facts and destruction of precedent. 

The three opinions venerate and glorify “history and tradition” over established legal principle and fact because these justices want to drag us back to a time when conservative white Christian men ruled. When their rights were the only rights that mattered. As I explain in my new book, American Crusade: How the Supreme Court is Weaponizing Religious Freedom: “These justices’ overriding principle won’t be reality or the law or the Constitution or the three lines or even any of the legal tests unnamed in this book, but simply this: Christians win.” 

Specifically, conservative white Christian men win.

There’s data to back this up. Plenty. But it’s also clear in the decisions themselves. 

Images from Kennedy v. Bremerton School Dist.

Take the case of the coach who imposed his prayer on students: the ultra-conservative supermajority utterly rewrote reality to arrive at the decision. The six justices used Trumpian “alternative facts” to decide the case. A  judge appointed by Republican George W. Bush warned the court that the Christian nationalist law firm behind the case, First Liberty Institute, was spinning a “deceitful narrative” about a coach engaged in “quiet” and “private” and “personal” prayer. The Republican justices regurgitated this narrative even as Justice Sotomayor, joined by Kagan and Breyer, debunked the lie with undisputed photographic evidence.

Disturbingly, this didn’t shame the majority in the slightest. They lied—even when everyone can see the truth at a glance. 

After laying out the Fox News version of events, these six justices gutted the Constitution and precedent that predates Roe v. Wade. In 1971, the court looked back on all the cases it had decided about the government using government power and resources to promote, advance, inculcate, or impose one particular religion over others—or religion generally over nonreligion—and synthesized more than a century of precedent to arrive at a simple legal test known as the Lemon test.

This was strong precedent, older than Roe v. Wade and issued in an 8–1 decision built on all the Court’s earlier cases. Like Roe, this precedent has been a target of the conservative legal crusade. Not because it was bad or ahistorical or somehow wrong, but because it prevented the dominant religious group in this country from using the machinery of the state to impose their religion on others. 

The separation of church and state is a check on Christian privilege. And that’s why it’s been under assault.

That’s also why the popular invocations of my friends at The Satanic Temple go awry in the aftermath of these decisions. “I can’t wait to see TST open a school in Maine!” Or “Paging TST, looks like it’s time for post-game Baphomet rituals!” It’s almost not even worth asking how the Court would have decided the cases if they didn’t involve that once-dominant religious group; if taxpayers were forced to support a Muslim school which taught students to refute Christianity with the Quran; or if the Court would have sided with a Muslim coach delivering post-game prayers to Allah at the 50-yard line. 

These arguments are premised on the idea that religious freedom applies equally. That we have, as the words etched into the edifice of the Court tell us, “equal justice under law.” But we don’t. We didn’t in these cases. 

And that’s because this Court doesn’t understand religious freedom as a universal freedom, but as a Christian privilege

Notably absent from the majority’s opinion in the coach case was the religious freedom of students and families who felt pressured to join his prayers at the 50-yard line. Just as the religious freedom of every Maine taxpayer was absent from the case the Court decided last week. Think about this: One of the Christian schools at issue in the Maine case taught a ninth-grade social studies class with objections that include students learning to “refute the teachings of the Islamic religion with the truth of God’s word”; and now Muslims in Maine are going to have to fund that teaching. 

This ultra-conservative majority even excluded women from the opinion that overturned Roe v. Wade, stealing their bodily autonomy without deigning to name them. This court ignores religious freedom unless it belongs to conservative Christians—they even have so much “religious freedom” that it gives them the right to impose their Christianity on half the population.

That—and I cannot stress this enough—is the point of these cases. And now, they’re not even hiding it. 

As I explain in American Crusade, the goal of these cases is to codify the waning privilege of the once-dominant cultural caste. This is why the conservative legal movement sought to capture and control the courts: because lifetime appointments in one of the three branches offer significantly more power when they’re faded into irrelevance in a democracy. They’re raging against the dying of their privilege. And in their rage, they’re destroying America.