This article originally appeared in the October 9, 2022 Concord Monitor.

During 2020, the first year of the pandemic, governors in several states, including Nevada, California, and New Hampshire, issued regulations limiting the number of people who could assemble in an indoors space. When religious groups challenged the Nevada and California mandates, a Supreme Court “shadow docket” majority initially deferred to the executive branch. It did so on the basis that courts are not healthcare experts and that such limitations should be upheld in a time of national emergency.

But not without strong objection from Justices Alito, Gorsuch and other members of the Court. In late 2020, following Justice Ginsburg’s death and the confirmation of Amy Coney Barrett, the new majority overturned what had been decided just months earlier. 

That is just one instance where the Court’s conservative majority has sided with religious interests. Last term, the Court did so three times, one case holding that when the City of Boston made one of its flagpoles available as a public forum, it could not  refuse to allow a Christian flag to be raised (a 9-0 decision); another holding that if Maine provides tuition support to parents living in sparsely populated districts, it cannot limit that benefit to non-sectarian schools but must extend it as well to parents who enroll their children in religious schools (6-3); and the third siding with a public high school football coach who insisted that he had a constitutional right to pray on the 50-yard line right after the game (also 6-3).

This year’s docket includes 303 Creative LLC v. Elenis, which will decide whether a designer of wedding websites may withhold her services from same-sex couples because her religion opposes gay marriage. The case is framed as a free speech case—whether application of the state’s anti-discrimination public accommodations law “to compel an artist to speak or stay silent” violats the First Amendment.” But it is, in truth, the latest instance of weaponizing freedom of speech on behalf of religion. Given the makeup of the Supreme Court and last year’s rulings, it isn’t hard to predict the outcome.

Meanwhile, Yeshiva University is in the middle of a dispute with an LGBT student organization. Yeshiva, which describes itself as “the world’s premier Torah-based institution of higher education” refused to recognize a group called “Y.U. Pride Alliance” on the grounds that its activities in support of gay rights were contrary to Jewish religious principles. The club sued under New York’s human rights law, which prohibits discrimination on account of sexual orientation. The lower court ruled for the students on the somewhat technical grounds that Yeshiva’s incorporation papers describe it as an educational institution, not a religious one.

The case went to the Supreme Court’s “shadow docket,” and by a 5-4 vote the students prevailed, at least for the moment. Chief Justice Roberts and Justice Kavanaugh joined the three liberal justices, while Justice Alito, joined by Thomas, Gorsuch, and Barrett, dissented. Alito’s dissent in the Yeshiva case accuses the majority of inflicting “grave harm on the university’s right to religious freedom.” This is the same Justice Alito who, a few years ago, wrote the Hobby Lobby decision allowing a closely held corporation (a “person,” according to the opinion) to withhold contraception coverage, required by the Affordable Health Act, from employees’ health plans. The rationale was that the company’s owners oppose certain types of contraception for religious reasons.

Rather than going along with the Court’s ruling in favor of Y.U. Pride Allowance and continuing the litigation in the New York courts, Yeshiva University announced it was suspending all undergraduate club activities. This sounds like how some southern cities responded to school desegregation by “privatizing” the school system. 

The student group responded by saying it would abide by the University’s wishes while the case makes its way through the lower courts, thereby allowing other groups to function rather than become collateral damage to the dispute. I doubt that this case will ever get back to the Supreme Court. but if it does Justice Kavanaugh, and probably the Chief Justice as well, will probably join the Court’s other four conservatives, and the university will prevail. 

The law grants exempts churches and other religious institutions from certain anti-discrimination laws, but the Court crossed the line in the Hobby Lobby case, which has turned out to be a harbinger of what was coming. This Supreme Court shows little interest in accommodating competing interests. Instead, claims based on religious beliefs have prevailed in case after case. If that means overruling, or “abandoning,” previous decisions, or turning the wall between church and state into a picket fence, so be it. 

The likely outcomes in both the 303 Creative and Yeshiva University cases may seem like minor intrusions, but I don’t think so. The door, once open, may be difficult to close. The irony is that as the United States becomes a more diverse country, the Court’s constitutional interpretations may encourage our society to be less tolerant.