A new lawsuit filed by Robert F. Kennedy Jr.’s anti-science, anti-vaxxing organization seeks to drag America back to the dark ages—a time of plagues and killing in the name of God. Another lawsuit, well into litigation but just making headlines this week, features a Catholic elementary school arguing that masks as a public health measure violate the school’s religious freedom because masks cover up the image of God—the theology is stretched pretty thin to reach a preferred political stance.
The God of the Bible commands Abraham to “take your son, your only son Isaac, whom you love, and . . . offer him there as a burnt offering,” as a test of Abraham’s obedience. Abe agrees to murder his own son because he believes his personal god asked. An angel stays his hand, but imagine that this had happened in America in 2021 and that Abraham had followed through. Would old Abe have had a right, based on the religious freedom protections of the First Amendment, to kill his son?
This isn’t a hard question, but it is a ridiculous one. In fact, more than 150 years ago the Supreme Court rejected the idea that the right to religious freedom could ever include the right to sacrifice another human. Literally. Of course, this makes sense. Your right to believe your god is telling you to do something is not a right to act on that belief—especially when the action would violate the rights of another human being.
This is what makes the current wave of religious freedom cases—discriminating against LGBTQ foster parents or customers—so frustratingly simple. Religious freedom does not include a license to harm others. But this Supreme Court, packed with zealots and ideologues, has walked away from this clear and long-standing rule. By turning its back on that constitutional principle, the court has encouraged waves of lawsuits (including the two above) that seek to place religious freedom for conservative Christians at the top of a hierarchy of rights, with every other right—except perhaps the personal right to carry a gun—subservient.
The rule against religious freedom harming third parties seems more complicated when it involves children, as these lawsuits do. But, like Abraham and Isaac, they’re easy cases despite the arguments of the “pro-life,” anti-vaxx, anti-mask crowd.
The new anti-vaxxing lawsuit claims, among other things, that the District of Columbia’s law allowing children to be vaccinated without the knowledge of their parents or against the wishes of their parents, violates their parents’ religious freedom. The rule only applies to vaccines recommended by the CDC. Children can choose to get a safe, recommended vaccine. The right of the child to live, survive, and enjoy a healthy existence free from preventable diseases doesn’t seem to be a concern of the anti-reality, anti-vaxx, pro-religious freedom group bringing the case.
Resurrection Catholic school, the primary plaintiff in the anti-masking case, was able to find two parents willing to risk their children’s lives and join the lawsuit. The theology that provides the basis for the religious freedom claim is a gibbering word salad:
“Resurrection School believes that every human has dignity and is made in God’s image and likeness. Unfortunately, a mask shields our humanity. And because God created us in His image, we are masking that image. Masks also make us anti-social. They interfere with relations. As the Catholic faith teaches, we are relational beings. And our existence as relational beings points to the Holy Trinity. A mask is disruptive to this essential element of the Catholic faith, and it is disruptive to the teaching of young children for these and other reasons.”
Neither Cardinal Blase Cupich [L] nor Cardinal Timothy Dolan [R] is aware that “[a] mask is disruptive to [an] essential element of the Catholic faith.”
Pairing parental rights with religious freedom should not alter the outcome of these questions. Abraham lacks the right to kill any child, and that right does not suddenly materialize simply because the child is his son. Parents don’t have a right to risk the life or safety of their children just because they believe a god commands it. A parent who allows a child to ride in a car without a car seat or seat belt should be treated the same whether or not they’re driving to church. A parent who viciously beats a child should be punished without regard to whether or not they believe sparing the rod is anti-biblical. Parents who neglect the health of their diabetic child, leading to the child’s death, should not be exempt from murder and neglect laws that protect children from pathological or unfit parents.
This does raise the specter of an overstepping government trampling rights, but these exemptions are killing children right now. In The Founding Myth I tell of cemeteries in Idaho filled with children born to a mother and father who consider themselves “Followers of Christ,” a sect with an infant mortality rate ten times higher than the rest of the state. While not new, the exemptions from criminal law that protect the parents who pray their children to death in lieu of seeking medical care date to the 1970s.
In 1972, the Supreme Court decided a case about children being raised in the Amish community. Did those children have to go to school until they were 18, as the law required, or could their parents stop their education early? The court, looking through rose-colored glasses at the sect, saw “rural” communities that are “aloof from the world” and devoted to “a life in harmony with nature and the soil” and romanticized an “Amish society [that] emphasizes informal ‘learning through doing;’ a life of ‘goodness,’ rather than a life of intellect; wisdom, rather than technical knowledge…” Even more remarkably, the court claimed that this Amish sect has “never been known to commit crimes, that none had been known to receive public assistance, and that none were unemployed.” Prof. Marci Hamilton has described the decision as “a love letter to the Amish.”
Unsurprisingly then, the court focused on the religious freedom of the community and parents, and utterly subordinated the rights of the students. It condemned children to that rural, aloof life, rather than asking the children about their “preferred course,” as the dissent in that case suggested. It’s gotten worse from there. Religious childcare facilities are often exempt from basic safety requirements, reporting requirements, and other government regulations which are designed to protect the vulnerable, not burden their religion. Religious schools are exempt from all manner of regulation and, thanks to another awful Supreme Court decision, raking in taxpayer funds to fail to educate children. And if our current crisis suggests anything, it’s the need for good education.
Packed by McConnell and Trump, this Supreme Court shows an appetite for making this much worse, for further weaponizing religious freedom and subjugating the rights of others to the rights of conservative Christians. In the recent Fulton v. Philadelphia case, the court subjugated the right of foster children to live in a loving home, and the right of LGBTQ foster parents to provide that loving home, to the bigotry of the Catholic Church. In case after case, the court has struck down public health measures in the name of religious freedom.
Stacked against this new weaponized religious freedom are the Covid-riddled corpses of 609,870 Americans, soaring infection rates, and the devastating stories of frontline medical teams watching the virus shatter the delusions of the unvaccinated in the moments before it claims their life: “One of the last things they do before they’re intubated is beg me for the vaccine. I hold their hand and tell them that I’m sorry, but it’s too late.”
It’s not too late for these children. And every other American relying on a future where we reach herd immunity. We need not sacrifice them on the altar of religious freedom. We can be the arresting angelic hand if we reverse the momentum of this new strain of religious freedom. But if these anti-vaxxing, anti-masking religious freedom lawsuits are successful, that macabre scene will play out for children all over the country. Not with credulous adults, but with innocent children. Their health and lives will be snuffed out, not just by Covid-19 (even after the vaccine is available for children), but by diseases humanity conquered decades ago. This weaponized version of religious freedom might just mean the death of America.
