Opinion | On Religion, the Supreme Court Protects the Right to Be Different – By Michael W. McConnell – The New York Times


Mr. McConnell, a former federal appeals court judge, is a law professor and director of the Constitutional Law Center at Stanford Law School.

Credit…Chip Somodevilla/Getty Images

“Some Supreme Court watchers have been quick to interpret recent decisions as skirmishes in American “culture wars” — with some decisions (on abortion and sexual orientation) siding with the cultural left and others (on religion) siding with the cultural right.

There is another way to look at them. Viewing the decisions as a whole, rather than one by one, they can be seen not as advancing left or right but instead as protecting pluralism — the right of individuals and institutions to be different, to teach different doctrines, to dissent from dominant cultural norms and to practice what they preach.

One indication is that most of these decisions broke 7-2 or 6-3, instead of along the predictable 5-4 conservative/liberal split. At a time when American politics is toxically polarized, it is a welcome relief that members of the court, which by constitutional design is supposed to be the least political of the three branches of government, can still find common ground across ideological divides.

In two of the religion cases, Justices Stephen Breyer and Elena Kagan, both Democratic appointees, joined the Republican appointees in upholding the rights of religious institutions to set and follow their own doctrine. Two Republican appointees joined the decision treating discrimination on the basis of sexual orientation or transgender status as “sex discrimination” — and Justice Neil Gorsuch, a Trump appointee, wrote the opinion. If law were only politics, those cases would not have come out that way.”

David Lindsay:  I was impressed by this man. He has the voice of Saruman. But my my slow wits were woken by the following comments.

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“The inferior quality of many American public schools, especially those serving inner-city minority populations, is a primary reason for this country’s outrageous economic and social inequality.” This is a conservative shibboleth. The schools are a symptom, not a cause of this country’s economic and social equality. The reason for those is longstanding racism and growing income and wealth inequality as a result of government policy, redlining and the criminal justice system, among other factors. School choice only assures that those left behind in public schools in poor urban districts will get an even worse education. If conservatives favored greater equality of outcomes for urban school districts, THEY’D FUND THEM BETTER.

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Timothy commented July 9

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The problem with the author’s argument is that these decisions allow ‘some’ people to be different: in one particular (presumedly acceptable) way; and at the expense of others’ difference. About the poor state of public schools: yes, many public schools are not doing so well, but that’s because conservatives have vigorously destroyed public education on budget, taxation, labor, and policy levels since the Reagan administration—with the express goals of dumbing down the (middle- and lower class) electorate and paving the way for religious indoctrination using taxpayer money…. as we’re seeing now. These demons play the long game, folks. And last, the health insurance issue, just in general: Why anyone thinks one’s employer’s values or morals should in any way affect how one uses one’s legally-provided health insurance is an absolute mystery. Yet another great argument for universal, national health care.

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Julie commented July 9

East End of NY
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This conservative vision of religious “liberty” is dangerous, especially when it comes to giving employers the “liberty” to enforce beliefs on other people just because they happen to be employees. The deciding factor in this vision is economic clout, not moral standing, when he who cuts the paycheck gets to decide the values. Likewise with public schools, denigrated as “failures” and sabotaged by the religious right. McConnell presents an economic argument to fix what he says is “The inferior quality of many American public schools.” It’s that “Private schools, including religious schools, bring needed competition.” God is not being worshipped here. Capitalism is.

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Equality commented July 9

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Last I checked vasectomies are covered by most insurance policies. Why are they not specificially excluded from insurance coverage due to the same religious beliefs? I’m confused. Men get birth control choices but women do not?

3 Replies154 Recommended

Thomas S commented July 9

Thomas S
Prospect, CT

What a masterpiece of sophistry! These religious institutions serve a pluralistic, secular society. They draw their clients and employees therefrom and, in a great many cases, they draw revenue from public coffers in reimbursement for their services. The facilities owned and operated by the Little Sisters of the Poor would be out of business were it not for Medicare and Medicaid. Unless they treat all equally, they should not be allowed to drink at the public trough. The same should apply to Catholic hospitals and health systems that deny reproductive health services to women, especially the poor for whom they purport to care so much. Around ninety percent of Catholics defy their church’s teachings on birth control. What the bishops can’t successfully impose on them, they would impose on anyone else that they can. The real trinity that they worship Is that of power, control, and money. Principle got lost in that tangle a long, long time ago.

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