Understanding Ruth Bader Ginsburg’s ‘Religious Liberty’ Legacy

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Culture & Conversation Religion

Understanding Ruth Bader Ginsburg’s ‘Religious Liberty’ Legacy

Nina Henry

In a nation with separation of church and state, there’s no justice in Christian nationalism.

For more on Ruth Bader Ginsburg, check out our special report.

The conservative legal movement wants you to believe they’re defending “religious freedom.” In reality, they’re doing the opposite. They’re trying to define religious freedom as a right to discriminate against anyone who does not adhere to their conservative Christian values. This is Christian nationalism at its most vile, and as a Jewish feminist, I don’t believe there’s any “freedom” in Christian nationalism.

Neither did Justice Ruth Bader Ginsburg.

Like Ginsburg, I oppose a warped definition of “religious freedom” as a license to discriminate. This flawed interpretation of religious freedom hurts marginalized communities and prioritizes conservative Christian values over all other religious values. The Supreme Court has too often been willing to permit Christians to exempt themselves from complying with laws that offend their religious sensibilities.

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The religious exemptions conservative Christians seek would make it easier to deny basic health care and civil rights protections to LGBTQ people, people who use birth control, and anyone who’s not a certain kind of Christian. Religious freedom is meant to protect the diversity of American religion. My choices about birth control, abortion, fertility treatment, and adoption are based on my own religious beliefs—not my doctor’s, not my boss’s, and not Justice Amy Coney Barrett’s.

I remember being 17 years old and so angry about this decision that I did my very first protest: a one-woman picketing of the closest Hobby Lobby store.

Justice Ginsburg warned us about the threat of religious imposition years ago. In 2014, the conservatives on the Supreme Court held in Hobby Lobby v. Burwell that a corporation could claim to have “religious beliefs” and exempt itself from the Affordable Care Act’s mandate that employers provide contraceptive coverage for their employees. Ginsburg’s searing dissent rejected the idea that religious freedom lets you impose your religious beliefs on others. I remember being 17 years old and so angry about this decision that I did my very first protest: a one-woman picketing of the closest Hobby Lobby store.

I got a terrible sense of déjà vu last summer when, in Little Sisters of the Poor v. Pennsylvania, the Court made it even easier for employers to use their religious beliefs as an excuse to deny birth control coverage to their employees. The Court ruled in favor of the employers, accepting that “between 70,500 and 126,400 women would immediately lose access to no-cost contraceptive services” through their insurance plans. Ginsburg’s dissent—which turned out to be her last—discussed the ways reproductive autonomy gives us the power to shape our lives. We should follow her lead in rejecting the weaponization of “religious freedom” against people who use birth control.

Religious perspectives on birth control and abortion are diverse. Judaism supports access to birth control and abortion as a way to heal the sick, provide for the needy, and honor the dignity of others. Dozens of progressive religious groups, such as Catholics for Choice, Muslim Advocates, and the Unitarian Universalist Women’s Federation, signed onto an interfaith letter last year in support of abortion access. The National Council of Jewish Women (NCJW) explained that decisions like Little Sisters of the Poor represent a Christian majority violating the religious freedom of people with different moral beliefs. “A person’s ability to access birth control should not be dependent on the religious views of their employer or educational institution under the guise of religious freedom,” NCJW CEO Sheila Katz said in a statement after the decision was issued.

We’ve already seen the fallout from Ginsburg’s absence from the Court. The Supreme Court recently exempted religious groups from temporary COVID-19 restrictions on gatherings; that decision marked Barrett’s first tie-breaking vote. LGBTQ people have good reason to fear that their rights under anti-discrimination laws will be next.

The day after the election in November, the Supreme Court heard a case about whether religiously affiliated foster care agencies can discriminate against LGBTQ parents and still take taxpayer money. In this case, Fulton v. City of Philadelphia, a Catholic foster care agency argued that requiring the agency to follow the anti-discrimination rules for city contractors was itself anti-religious discrimination. The case could have enormous implications for anti-discrimination laws going forward.

Fulton is really about whether the government can promote a narrow definition of what it means to be religious. Because I am Jewish, a foster care agency could reject me for failing to provide a “Christian family.” One Jewish would-be foster parent wrote, “When somebody tells you that a hurting child is better off at their orphanage than living in your Jewish home, it doesn’t make you feel good about yourself.” Ginsburg would have understood that. She would have rejected the false choice between “religious discrimination” and “LGBTQ discrimination” by recognizing the obvious truth: religious freedom does not give you the freedom to discriminate against the public using taxpayer money.

With a conservative majority on the Court, the Supreme Court is unlikely to recognize that a flawed interpretation of religious freedom hurts communities that are already oppressed. According to a Columbia Law School study, low-income people of color are disproportionately treated at Catholic-affiliated hospitals, where bishops’ directives can override a patient’s wishes for abortion, sterilization, or gender-affirming care. Catholic anti-abortion directives interfere with treatment of life-threatening pregnancy complications, which disproportionately harm Black pregnant people. In the Fulton case, children in the foster care system will suffer the most if the Court rules against LGBTQ families. Studies indicate about one-third of foster children are LGBTQ. How can these kids possibly be treated fairly by religious foster care agencies that want to be exempt from anti-discrimination laws? Yet white, straight Christian lawyers in the conservative movement are arguing that they are oppressed if they can’t discriminate. It would be laughable if it wasn’t so scary.

Justice Ginsburg and I both drew solace and inspiration from a commandment in the Torah: “Justice, justice, thou shalt pursue!” In a nation with separation of church and state, there’s no justice in Christian nationalism. If we want to honor the best of Ginsburg’s legacy, we should reject a twisted redefinition of “religious liberty.”