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Pope Francis for the Supreme Court?

The Pope speaks for sexual rights more than the Supreme Court nominee.

You know the world is upside-down when the Pope is the spokesperson for progressive sexual politics. And that’s where we are today.

In the same mind-boggling week, Pope Francis publicly endorsed legal protections for same-gender couples, while presumptive Supreme Court Justice Amy Coney Barrett refused to honor Obergefell v. Hodges, the Court’s 2015 decision affirming same-sex couples’ right to marry.

In last week’s Senate confirmation “hearing,” Barrett also refused to say whether Lawrence v. Texas, decriminalizing same-gender sex in 2003, was correctly decided. Indeed, she has sidestepped all questions about preserving LGBT non-discrimination protections.

The day after Election Day, the Court will hear a very important case that addresses a central conflict in American society: between religious rights and anti-discrimination laws.

Fulton v. City of Philadelphia has been brought by Catholic Social Services. Philadelphia’s city officials ended CSS’s contract to provide foster care services because the agency will not accept applications from married same-sex couples.

The Supreme Court accepted the case after an appeals court ruled in favor of the city and its anti-discrimination law.

When do religious organizations deserve exemptions from anti-discrimination laws that the groups say would cause them to violate deeply held beliefs, such as what constitutes a marriage, or a “moral” home environment? The Court may choose this case as its chance to issue a historic ruling that expands the rights of religious groups at the expense of protecting the fundamental rights of other groups.

While America is far from perfect, the last half-century has seen an increasing number of its citizens guaranteed the rights enjoyed by the majority.

It is now illegal, for example, to deny contraception to single people; marriage to mixed-race couples; jobs to people in wheelchairs; equal pay to pregnant women; classroom resources to autistic children; and commercial services to black people.

Every one of these now-illegal behaviors used to be routine and legal.

Unfortunately, while America has marched toward increasing legal equality based on outlawing more and more forms of discrimination, it has also marched to a relentless expansion of rights based on claims of “religious freedom.” In particular, individuals and organizations—with the encouragement of major political figures and deep-pocket religious groups—are claiming exemption from an ever-expanding range of anti-discrimination laws.

These demands to be excluded from various laws are supposedly guaranteed by our beloved First Amendment.

In what is called the Establishment Clause, the First Amendment prohibits the government from making any law “respecting an establishment of religion.”

This was a radical idea in the 18th century when one of the perks of every monarch was deciding which would be the state religion (i.e., theirs)—meaning that following any other religion was treason, punishable by death.

The Establishment Clause not only forbids our government from establishing an official religion (as in Tudor England or modern India), it also prohibits government actions that unduly favor one religion over another (as in Turkey). And it prohibits our government from preferring religion over non-religion (as in Austria).

So in America, we are free to believe what we like. Simple. Elegant. Life-affirming.

The problem comes when people decide that in order to follow their religious beliefs, they have to violate the legal rights of their fellow Americans. Does the Establishment Clause give “believers” more rights than everyone else?

This idea is particularly repulsive since the government itself defines “religion”—as opposed to, say cult, hallucination, or mental illness. So for example, our government does not recognize the right of XYZ hypothetical religion’s followers to marry schoolchildren. But it does recognize the right of several other religion’s followers to circumcise babies (Jewish, Muslim) and withhold medical care from children (Christian Scientist, Jehovah’s Witness).

Our government recognizes the right of certain believers to keep their kids out of school. It even allows certain believers to collectively identify "clergy members" who are given the privilege of confidentiality and excuse from subpoena.

That’s how people and groups are now getting around anti-discrimination law—by claiming more and more exemptions under the Establishment Clause. And that’s what Amy Coney Barrett has done and presumably will continue to do. She says this is one of her values.

This is exactly how you destroy America’s innovative, historically radical, beautiful wall of separation between church and state.

Regardless of who is elected president, the civil rights of LGBT people and the sexual rights of everyone (contraception, sex education, pornography, etc.) will be at the forefront of crucial legal battles in the coming years.

Pope Francis’s declaration blessing same-gender unions raises the interesting issue of how Catholics can justify the right to illegally discriminate when their Holy Father disavows such a necessity.

And when churches such as New Life (Colorado) and Grace Community (California) defy COVID-era public health laws because “we obey the laws of God and not of man,” (Pastor John MacArthur, Pastor Ron Hoffman and dozens of others), how does endangering the rest of their communities respect the Constitution’s protection to believe whatever you like?

Let’s all be thankful that these power-mad religious messiahs don’t instruct their sheep to ignore red lights or kidnap their neighbors’ children in order to “express” their religious beliefs.

And let’s marvel that at least for a moment, Catholics have a Pope who believes that access to the Church’s spiritual grace isn’t contingent on the form of an individual’s or couple’s sexual connection. If only our soon-to-be new Supreme Court justice believed the same about access to America’s legal grace—that it isn’t contingent on her approval of someone’s sexuality.

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