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LINK The Satanic Temple: The Law is on our side. The courts are not

About five years ago, a lawyer for The Satanic Temple attended a Continuing Legal Education (CLE) seminar hosted by the “Alliance Defending Freedom” (ADF), only to unexpectedly find that the event’s primary topic of discussion happened to be The Satanic Temple. The ADF is a theocratic Christian Nationalist litigation group that fights to bring expressions of the Christian religion into the public square, seeks to re-impose a narrow definition of marriage as strictly a union between a man and woman, and strives to preserve the “sanctity of life” by abolishing reproductive freedom.

At the seminar, a representative of the ADF was discussing “the problem” of The Satanic Temple, which, put simply, is the uncomfortable tension arising from the fact that all of the arguments that have successfully served the ADF in their efforts to expand “religious freedom” for Christians threaten to be equally potent in their application toward the assertion of equal rights for Satanists. The Satanic Temple was not using novel legal arguments in the courts, the ADF realized. In many cases, The Satanic Temple was using the exact same arguments that the ADF had utilized on behalf of Christian Nationalist interests.

The ADF had successfully argued in support of forcing public schools to host proselytizing, evangelical after school clubs. Now, The Satanic Temple were using the exact same citations and “equal access” claims to install an alternative, science-based after school program in districts hosting those very evangelical clubs. The ADF prevailed in the Supreme Court securing the right of the Town of Greece in New York to open City Council meetings with a religious prayer or invocation delivered by an outside speaker. Now, Satanists in The Satanic Temple were asserting claims of equal access to give invocations where city councils insisted on hosting prayers.

Prior to the establishment of The Satanic Temple, the fear of an “alternative,” or non-Christian, religious group demanding equal access where Christian Nationalists had successfully breached the wall of separation between Church and State was negligible. The ADF had grown accustomed to pretending that they supported religious freedom generally, rather than Christian supremacy specifically. Now, Satanists seemed intent on being visible in all places where the ADF were demanding “religious freedom” for gospel-spreading evangelicals.

The “problem” of The Satanic Temple, the ADF will surely never acknowledge, is the problem of religious freedom itself. Religious freedom demands that there shall be no religious tests for public office-holders, no religious discrimination in the allocation of access to public resources, and nobody’s civic capacities, whether a theist or nonbeliever, shall either be enhanced or reduced based upon their religious identity. In a constitutional republic predicated upon religious liberty, this non-negotiable fundamental principle poses a difficult challenge for disingenuous theocrats who speak of “religious freedom,” but strive to give exclusive exemptions and privileges to a specific viewpoint.

Lawyers in the ADF do not need a particularly cunning strategy. They have an advantage that The Satanic Temple has never had, and likely never will: sympathetic judges who are willing to contort reason, cherry-pick precedent, and undermine basic pluralistic values in order to rule in favor of Christian values.

I believe the recent years have revealed the ADF’s legal plan towards The Satanic Temple. The plan is to merely pretend that The Satanic Temple’s arguments are significantly qualitatively different from their own, when they are not, and to trust the courts to treat The Satanic Temple with hostility, because they tend to. As for the public, they prove remarkably willing to internalize and accept the disparity in treatment between “credible” (Christian Nationalist) religious liberty claims, and spurious religious liberty claims (all others).

Thus, legal “experts” interviewed in the press about The Satanic Temple’s “long shot” odds of prevailing in the courts often give an analysis that implicitly conveys the fact that religious liberty laws are extremely flexible for Christian Nationalists, but not so much for anybody else. It is, in fact, only in light of this understanding that The Satanic Temple’s claims can be seen as a long shot to begin with.

And only with an understanding of the unspoken differential between Christian Nationalist claims and all other religious liberty claims can we make sense of a recent article published online by the Washington Examiner with a headline proclaiming: “Abortion is not a religious ritual protected by the First Amendment.”

The article treats as absurd legal claims arising from both The Satanic Temple and a Synagogue in Florida asserting First Amendment protections in defense of abortion access for their adherents. The Jewish claim contends that the viewpoint that life begins at conception is a religious position contrary to their own, and that “in Jewish law, abortion is required if necessary to protect the health, mental or physical well-being of the woman.” The Satanic Temple asserts similar claims but, further, Satanists have an Abortion Ritual that acts as something of a ceremonial pre and post-abortion counseling session for those undergoing the procedure. The Satanic Temple contends that the First Amendment protection of religious practice prevents the government from interfering in, or preventing, the enactment of a religious ritual.

Erin Hawley, a senior counsel at none other than the Alliance Defending Freedom, told the Washington Examiner that “[a]ny exception [to abortion restrictions] would apply only to a woman seeking an abortion who sincerely believed her faith required one—a reviewing court would not strike down a pro-life law.” In other words, it is not enough to come to a reasoned decision in deference to one’s religious beliefs concerning conception and bodily autonomy. In order to claim a religious right to abortion access, Hawley asserts, it must be proven that the religion specifically demands of an adherent that an abortion must be performed. If one is going to claim a religious liberty protection for abortion, according to this logic, one must presumably be prepared to show where in the religion’s doctrine an abortion is made mandatory.

To understand the irony of this comment, consider that the ADF recently filed an amicus brief on behalf of a high school coach who insists that his religious liberty demands that he must be allowed to ostentatiously pray at the football field’s 50-yard line while players and spectators are present, despite the coercive effect this ritual might have upon students. Kennedy v. Bremerton School District has been heard by the Supreme Court and should be decided (given the current composition of the Supreme Court) in favor of coach Kennedy within the next couple of weeks.

Where in the Christian bible can we find evidence that coach Kennedy’s faith requires him to engage in prayer on a football field before spectators? What part of the Christian bible dictates that it would be a violation of Kennedy’s faith to pray before or after the game, privately? Is such specificity in doctrinal demands reserved only for the scrutiny of non-Christian claims? The principles of equality and viewpoint neutrality insist that the answer is “no,” but the ADF recognizes that, in practice, the courts are seldom reliable in upholding such lofty standards.

Ian Millhiser, writing for Vox, states that “Kennedy should not be a hard case. It is well established that school officials cannot use their official government position to pressure students into religious exercise,” but then goes on to acknowledge that there “is a very real risk […] that the Court could use this case to upend 60 years of established law.”

Does anybody for a moment truly believe that a Jewish, Muslim, Hindu, Satanist, or any non-Christian religious claim—even if qualitatively identical—would stand a chance of overturning such long-established precedent?

Or consider the outcome of the Supreme Court’s decision in Burwell v Hobby Lobby Stores, Inc, where the Hobby Lobby corporation prevailed in arguing that a sincerely held belief in the tenets of the Christian religion prevented them from being able to offer employees federally mandated healthcare options that provide contraceptive coverage. Nothing in the Christian bible could possibly legitimize this specific claim, but it was not demanded that anything should.

Again, doctrinal specificity is reserved for less popular religious claims, while for Christian Nationalists it is enough that their demands are alleged to be attached to some nebulous religious moral ideal. Consider Christian exemption claims against Covid restrictions and vaccination. The list could go on and on.

While the Kennedy v Bremerton case threatens to defy 60 years of established law, I think that it is nonetheless incorrect to conclude that it threatens to “upend” established law. The reality is worse: “established law” will remain a barrier for non-Christian religious claims, but the radical expansion of Christian Nationalist privileges is, and will be, treated as the result of a collection of anomalous rulings, not precedent. In 10 years pursuing litigation on behalf of the religious freedoms of The Satanic Temple, I am still amazed at how legal scholars and experts fully accept that cases like Hobby Lobby can not be taken seriously as precedent-setting outside of Christian Nationalist claims. The scholars and experts, by and large, fail to cry foul when Satanists or Jews are demanded to appeal to very narrow and specific religious doctrinal demands when advancing claims for their religious freedom, even after Christian Nationalists continue to gain legal exemptions on nebulous claims of moral identity.

At best, the Christian Nationalist victories might be seen as having been decided wrongly, while an identical claim rejected by the courts and advanced by Satanists or others will be viewed as having been decided correctly. But ruling against minority religions in an identical claim that was previously successfully advanced by Christian Nationalists does not re-establish legal normalcy, it destroys religious liberty and establishes a theocratic Christian supremacy.

Americans have internalized official discrimination against minority religious claims in the same way that they have internalized the false notion that “religious liberty” allows for the expanded civic capacities of religious believers beyond those which can or will be afforded to non-believers. Despite misconceptions about The Satanic Temple, our religious “context” is not merely a ploy by which we seek to gain legal advantage through the invocation of religious liberty. Non-believers are just as entitled to claims of conscience as religious believers are, and should assert that right with every expectation of being treated equally.

But by what right do I proclaim that the great arbiters of American Law in the hallowed halls of the Supreme Court will be “wrong” in ruling favorably for coach Kennedy? Without a law degree, how am I qualified to claim with such certainty that the outcome of Hobby Lobby is rightly characterized as absurd? How can I, as the co-founder of The Satanic Temple, be certain that the courts are treating us unfairly, and that we are not merely incorrect in our interpretation of our legally protected religious freedoms?

I do not need a law degree to understand the concept of equality.

Nobody does.

Nor are our deeply held beliefs dependent upon what we, as a religious minority, might be expected to “get away with” in the courts. Our claims of conscience are sincere, and rooted in a set of ethics that define our identity as a community. They are non-negotiable. We can not be dissuaded from fighting for what we believe, regardless of the disposition of the courts. Any analysis of The Satanic Temple’s litigation that adjudges us, as an organization, unfavorably for our “longshot” odds misses the point. We will fight on and press forward, regardless of how slim the odds. And if we lose, we will regroup and fight again. And we won’t stop.

But if we take seriously the principles of Equality, Freedom of (and from) Religion, and Pluralism, the law is, and always has been, on The Satanic Temple’s side. The fact that the courts are not is indicative of a very serious problem.

OldMetalHead 9 June 22

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As I said in a previous post, the current SCOTUS has been corrupted.
At least six of the sitting justices need to be removed.

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