Conservative Justices Suddenly Discover Limits to Religious Liberty

These jurists appear to believe that questioning other people’s motives is uncivil and undignified—except when they feel like doing it.

Close-up of hands holding a religious image
Alex Majoli / Magnum

About the author: Adam Serwer is a staff writer at The Atlantic, where he covers politics.

John Henry Ramirez is going to die. The state of Texas is going to kill him. The question that came before the Supreme Court this week is whether Dana Moore, his longtime pastor, will be able to lay hands on him as he dies.

Given the grand, even alarmed pronouncements about religious liberty made by the right-wing justices recently, you might think this would be an easy decision. But at the oral argument, several of the conservative justices suddenly became concerned about whether Ramirez is sincere in his religious beliefs, or whether he is simply, in the words of Justice Clarence Thomas, “gaming the system.”

Justice Samuel Alito shared his fear that approving Ramirez’s request might produce “an unending stream of variations” from other condemned prisoners seeking religious accommodations. “What’s going to happen when the next prisoner says that ‘I have a religious belief that he should touch my knee’? ‘He should hold my hand’? ‘He should put his hand over my heart’? ‘He should be able to put his hand on my head’? We’re going to have to go through the whole human anatomy with a series of—of cases.” Similarly, Justice Brett Kavanaugh worried that if the Court ruled in favor of Ramirez, “then there will be the next case after that and the next case after that where people are moving the goalposts on their claims in order to delay executions.”

I’ve heard a lot of slippery-slope arguments in my time, and I confess that the possibility that the condemned might experience a brief moment of comfort before death has to be among the least frightening I’ve ever encountered.

As Slate’s Mark Joseph Stern writes, the conservative justices’ novel concern with the potential that people might use their religious beliefs to get around the law is particularly jarring, given that these same justices have refused to consider that possibility in other cases. When the issue is businesses of public accommodation discriminating against customers on the basis of sexual orientation, or adoption, or contraception, or even vaccination, the conservative justices have refused to consider whether someone might seek a religious exemption in bad faith. In the conservative commentariat, the mere suggestion that someone might do so is taken as evidence that conservative Christians are being persecuted. With any kind of exemption, there’s a chance that someone might try to claim one in bad faith. It’s not beyond the pale for the justices to consider that chance; it’s telling that they do so only under certain circumstances.

Many questions of religious liberty involve two parties who have reasonable claims that a decision one way or the other could violate their rights. Such cases are usually complex. But the extent to which certain justices take such questions seriously appears related to how politically sympathetic they are to a given party. In this case, Ramirez is a convicted murderer who stabbed a man to death during a robbery. He is a far less sympathetic figure to the conservative justices than the owners of Hobby Lobby, whose religious views did not prevent them from accumulating thousands of stolen artifacts from the Middle East. Their skepticism of his motives comes despite the fact that the Ramirez case has no particular partisan valence.

The justices who are so skeptical of Ramirez have not always been eager to question motives. In Ramos v. Louisiana, a case involving nonunanimous juries, Alito fumed at Justice Neil Gorsuch for pointing out that the history of such juries was tied up in an effort to “undermine African American participation on juries,” whining that the majority opinion, which held that the Sixth Amendment requires unanimous juries for conviction in criminal trials, reflected a modern discourse that “attempts to discredit an argument not by proving that it is unsound but by attacking the character or motives of the argument’s proponents.” That Louisiana’s 1898 constitution was a consciously racist document that successfully disenfranchised the state’s Black residents and purposely prevented them from serving on juries was apparently not germane, nor was the origin of Oregon’s similar law in an attempt to forestall “the influence of racial, ethnic, and religious minorities on Oregon juries.” Indeed, as Gorsuch wrote, “courts in both Louisiana and Oregon have frankly acknowledged that race was a motivating factor in the adoption of their States’ respective nonunanimity rules.” Alito’s reaction to the facts of the case was what you would expect from an obsessive Fox News watcher, rather than the apolitical jurist he claims to be.

Similarly, in 2019, the Trump administration sought to use the addition of a citizenship question to the census to effect a nationwide racial gerrymander, a decision that was quickly challenged in court by voting-rights groups. The scheme was uncovered when the daughter of Thomas Hofeller, the Republican operative who had developed the idea, handed his hard drives over to liberal advocacy groups. The documents, and communication between Hofeller and the Trump administration, made clear that the question’s stated purpose—to aid enforcement of the Voting Rights Act—was insincere.

The documents came out too late to be considered in the argument about adding the question held before the Court, but they seem to have affected the outcome anyway. In an opinion that was otherwise highly sympathetic to the Trump administration, Chief Justice John Roberts sided with the Democratic appointees, ruling against the administration on a technicality that left it without time to implement the scheme. Alito was outraged, however, that anyone would question the Trump administration’s motives. In his dissent, Alito thundered that the “decision is either an aberration or a license for widespread judicial inquiry into the motivations of Executive Branch officials.” Thomas also lamented the “din of suspicion and distrust that seems to typify modern discourse,” suggesting that the volume of evidence pointing to the Trump administration’s dishonesty had used “corkboard and—with a jar of pins and a spool of string” to “create an eye-catching conspiracy web.” Not long after the decision, Donald Trump did what he usually does, and confirmed that those who were suspicious and distrusting of the administration’s motives were correct. Questioning the motives of Republican officials—but only Republican officials—is apparently impolite, especially when they are obviously lying.

From 2018 to 2020, “civility” in politics was a constant theme in conservative media. Such calls for civility were, as I wrote at the time, less a demand for a political discourse rooted in mutual respect than a demand for submission to those currently in power. That the conservative justices would have the same political preoccupations as Fox News is not at all surprising. By the same token, however, the public is not obligated to humor the justices’ insistence on being seen as apolitical actors while they wage partisan culture wars from the bench.

These justices now echo the refrain that we should not question other people’s motives, that to do so is uncivil and undignified—except when they feel like doing it. As the record shows, holding motives above question is not a standard these justices adhere to; it’s just one they demand of others. You might ask whether it’s one they really believe in.