In 2017, when Barrett was testifying in confirmation hearings for her current position on a lower federal court, she was asked a question by Sen. Dianne Feinstein (D-Calif.) that drew widespread controversy and condemnation. Feinstein infamously suggested that Catholic “dogma” might unduly shape Barrett’s interpretation of the law. Like many who commented on that episode, we affirm the Constitution’s prohibition on religious tests for office, which protects believers and nonbelievers alike.
But her record suggesting that she would give favorable treatment to religious actors is a different story. Rather than insisting that religious groups be treated equally, she seems to approve of those groups receiving special privileges, as compared with their secular counterparts.
Consider an important case she decided last month — her only really significant case on religion. In response to the coronavirus pandemic, Illinois Governor J.B. Pritzker (D) had limited most gatherings to 50 people. He also had exempted religious groups and houses of worship, allowing them to congregate in larger groups, though advising them to adhere to social distancing measures. The state Republican Party sued, claiming that the policy unconstitutionally favored religion by subjecting core political speech — citizens discussing the presidential election, say — to tighter restrictions than those placed on religious expression. The Illinois GOP asked the court to hold that religious and political speech had to be treated equally, so that Republicans (following appropriate safety precautions) could gather in larger groups, as well.
As part of a three-judge panel, Barrett joined a decision written by Judge Diane Wood that rejected the Republicans’ challenge. The panel held that “preferential treatment” for religion is a constitutional norm: “[S]peech that accompanies religious exercise has a privileged position under the First Amendment,” the judges reasoned.
That decision is troubling in several respects. First, it ignores that the First Amendment not only protects religion through the Free Exercise Clause but also prohibits religious favoritism through the Establishment Clause. So if religion is treated specially in American constitutional text and history, it is specially burdened, as well as specially benefited. (“Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof.”) One clear command of the Establishment Clause is that members of one religious sect may not be elevated over members of another; nor may religious actors may be favored over nonreligious actors.
Second, the decision contradicts conservatives’ own insistence that religious speech is a viewpoint that must be treated absolutely equally by government. In a series of cases during the 1990s and 2000s, conservative advocates argued for, and won, decisions holding that government cannot treat religious speech differently from nonreligious speech. In one important 1995 case, the Supreme Court held that the University of Virginia could not bar religious student publications from receiving student-activities funding available to other publications. In a 2001 case, the court held that a Bible study group could not be excluded from public school buildings that were otherwise open after hours to community groups. The common thread was the equal treatment of religious viewpoints.
Yet the rule against viewpoint discrimination works both ways: If it prohibits religious speech from regulation or defunding, then it must also prohibit government favoritism toward religious expression. The opinion Barrett signed in the Illinois case contravenes this principle.
When it comes to favoring religion, Barrett is not alone in rejecting a principle of viewpoint neutrality. In a 2005 dissent involving government displays of the Ten Commandments, her mentor, Justice Antonin Scalia (for whom she clerked), described as “demonstrably false” the idea “that the government cannot favor religion over irreligion.” Other conservative members of the Supreme Court seem headed in the same direction.
Barrett’s views could be decisive in religious freedom cases, which have divided the court in recent years. For example, in the last several months, Chief Justice John G. Roberts Jr. twice joined the court’s four more liberal justices in rejecting challenges brought by religious groups opposed to state restrictions on large gatherings, even though nonreligious groups were subject to the same limits. Replacing Justice Ruth Bader Ginsburg with Barrett would almost certainly reverse such outcomes.
Barrett’s vote could also shape a major case on religious freedom that the court is scheduled to hear Nov. 4 — one day after the presidential election. In that case, a religious adoption agency has refused to place foster children with same-sex parents, despite a Philadelphia rule banning such discrimination. The agency argues that respecting religious liberty requires allowing it to receive public funding while it refuses to place children with LGBTQ parents.
Currently, the Constitution does not give religious actors a right to exemptions from laws that apply in the same way to everyone. Under that rule, the foster agency would lose, because the city’s prohibition on discrimination applies in the same way to religious and nonreligious agencies alike. But the court has agreed to consider whether it should fundamentally rethink how it approaches religious free exercise.
The four most conservative justices have already signaled that they would replace the existing rule with one that strongly favors religious exemptions. And they would do so regardless of whether those exemptions impose serious burdens on others across a range of laws involving public health, employment discrimination, equal access to public accommodations, insurance coverage for contraception and much else. Barrett would probably add a fifth vote to the existing conservative bloc on this question. (In 2012, as an academic, she signed onto an open letter calling for sweeping religious exemptions from contraception coverage requirements under the Affordable Care Act. The Trump administration subsequently enacted such exemptions; it seems likely Barrett would join the other conservative justices in upholding them.)
In short, Barrett’s additional vote would be enough to change our constitutional law by giving religious actors a privileged place in our society. And after Barrett replaces Ginsburg, the court could make that change even without the support of Roberts.
Senators can ask Barrett about her views on religious freedom in ways that don’t require her to prejudge cases. In rejecting discrimination between religious and political speech, the Supreme Court held in the University of Virginia case that “it is axiomatic that the government may not regulate speech based on its substantive content or the message it conveys.” Does Barrett agree, or does she think there is one constitutional standard for religious expression and another for other core political speech? In recent cases involving funding of religious schools, the Supreme Court has also forbidden discrimination based on religious status. Does that principle hold only when the discrimination works against religious believers but not when it favors them? More generally, what principles, if any, limit the government’s power to privilege religious actors through legal accommodations and exemptions?
In her short time on the bench, Barrett has not written extensively on religious freedom, so her views may not be fully developed. But in the most important case she has decided on the matter, she departed significantly from a basic principle of religious freedom. That ought to raise concerns about the direction the Supreme Court would head on this issue, should she be confirmed.