Let the religious win a few

Amy Coney Barrett switched the Supreme Court. The secular left is dismayed. It shouldn't be. 

Long term, this will help the secular left. 

Religion is hugely meaningful to many Americans. Unchurched, secular people--a growing group in this country--have a hard time remembering and respecting this. This country managed to unite and stay together because it prohibited the establishment of religion while allowing its “free exercise.” It made toleration the law. The heirs of Puritans in Massachusetts had to tolerate the disgusting papacy of the Catholics of Maryland, who had to tolerate the Quaker heretics in Pennsylvania. The Constitution prohibited religious triumphalism.

The First Amendment did not end religious prejudice, but it did disempower the "My God's better than your God" rivalry that is the typical behavior of political and military victors. The winning tribe demonstrates its power and ongoing legitimacy by showing that the god of their faction favored them above others. Muslims put a mosque on Temple Mount. Trump marched a Bible across a public park and held it up. Religious triumphalism is a game of King of the Mountain. Trump plays it well and his team wants it played.

Muslim shrine, placed atop holiest Jewish spot

Amy Coney Barrett switched the Court majority this week by allowing greater space for the “free exercise of religion.” The Court's majority decision did not claim that government had no power to regulate the size of religious gatherings. With Barrett changing the majority, though, the Court ruled that New York State's plan went too far and was unfair by regulating religious gatherings more strictly than other, non-religious incidents of contact the Court said were equivalent. The opinions in the majority cited grocery stores, hardware stores, liquor stores, bicycle repair stores. What about them?  

At bottom, the decision came down to the Supreme Court deciding that rather than give government a free hand to manage a pandemic, religious institutions had special status when judging whether they would be treated fairly; this was a shutdown plan, not an operation in effect. The Supreme Court could have said they don't comment on hypotheticals and potentials, only real disputes. They didn't. They sent a signal that there is a new majority in town. Religious groups have more privilege than before, to be independent of government regulation.

Some people on the left are dismayed. I am not. 

The secular left's effort to separate Church and State created the impression in the minds of a great many people of faith that “free exercise” was under attack. Evangelical Christians in particular got it in their minds that they were not King of the Mountain and they were being displaced by non-religious secularism. In the game of King of the Mountain triumphalism, someone is always a winner, and if it isn't you then it is someone else.

It is the winning that is important

The left had been winning pyrrhic victories in Court. They were scaring people so badly that people of faith were supporting Trump—Trump!-- because even though he was obviously not a person of faith himself--Lord knows--he fought the war on behalf of Christian triumphalism. 

The left fought to say a small-town cake decorator couldn’t refuse to create a gay-themed wedding cake, thus protecting the sensibilities of gay people. It was a victory for non-discrimination against gay weddings, but it came at the price of it being a defeat for free speech and freedom of conscience, a different liberal value. I can imagine myself owning a bakery and being asked to create a Confederate Flag Celebration cake and wanting to tell the customer to take his business elsewhere. 

The secular left was not side-stepping those battles; it was joining and winning most of them. The secular left was being triumphalist. The religious right closed ranks in resistance, and it won elections.

If religious people demand to get together in large groups and give each other COVID--for which there are multiple incidents, including a nationally famous one in LaGrande, Oregon--I think they are acting dangerously and selfishly, but they have the First Amendment that gives them more space to be anti-social than hardware stores would have. But what about the innocent people who later share a subway or produce aisle with an infected church goer?  What about public health? Democrats should have thought about that when they did not complain about COVID spread in the George Floyd protests. The conservative media is full of "But what about. . . ." What-about was the basis for the Court decision. Democrats lost their credibility on this issue. It is the problem of being the spokesman for virtue. Inconsistency is understood as hypocrisy.

Religious liberty has an Amendment memorializing the "free exercise" privilege, just as the non-religious have the Amendment protection of "no establishment." It is a balance assuring no triumph. The Bill of Rights creates multiple areas where freedom is inconvenient and vexing. Free speech is special, so if Rudy Giuliani wants to make dangerous statements at a press conference, or dance naked on stage, he can; it's free speech. Not having to testify against oneself is special. Not having your house randomly searched is special. Guns have special rights. The Bill of Rights is part of the American deal, complications and all. That’s the price we pay for freedom.

Click: Cruz ad. Triumph

Possibly if people of faith win a few of these court cases the public perception of religion being under attack will change and we will see a different conflict, one that will better serve the secular left. Ted Cruz's 2016 ad begins, "When atheists sued to tear down a cross meant to honor the sacrifice. . . . " He was pitting the secular left against the religious. Perhaps lawsuits over religious practice will be better brought by the varieties of Muslims, Jews, Christians and others who fight among themselves in court to keep rival sects from claiming primacy. Let Muslims demand the right to put up a Crescent in the Town Square, or on the hill overlooking national cemeteries, and let the Courts sort that out. There will inevitably be competition among religious groups for recognition, but the left would be better off if they were less central to that fight. The net result might be religious tolerance, a liberal value.

The Supreme Court just changed. My sense is that it didn’t spell the end for the values of the secular left. Quite the opposite.  It will save the left from the mistake of over-reach, a mistake that is costing them elections they should win.