“Religion freedom rolled back by SCOTUS” proclaims yesterday’s post by Rod Dreher on the Supreme Court’s decision
in Christian Legal Society v. Martinez. Taking off from a post by Wendy Kaminer over at the Atlantic, Dreher claims the court “believes that it’s licit to protect other groups, while singling traditional Christians out for special discrimination.”
That’s nonsense. What the court has done is decide that the Hastings Law School’s “all comers” rule for providing support to student groups applies to the “traditional Christians” who run the Christian Legal Society. But what Dreher really needs to recognize is that the decision has nothing whatsoever to do with religious freedom–because two decades ago the court seriously truncated the ability of religious individuals and groups to make Free Exercise claims.
I won’t repeat myself explaining this, except to say that the irony here is that it was Justice Scalia and his conservative allies (plus John Paul Stevens) who put in place the current standard that such claims cannot prevail against “neutral laws of general applicability.” As the majority in Christian Legal Society makes clear, an “all comers” policy is neutral and generally applicable. Dreher’s beef should be with Scalia & Co., who denied traditional Christians and everybody else the ability to make special claims on behalf of their religious views, in line with the way the First Amendment singles out Free Exercise for special protection.