Some Odds and Ends About Religious Issues

The new Speaker of the House, Mike Johnson, leaves a lot to be desired for a variety of reasons.  He is big on "religious liberty" through the eyes of a certain conservative lens. 

I am for a separation of church of state approach, which respects religion (FFRF is fine in various respects but is a bit too anti-religion overall for me). Since the Supreme Court does not have a religious liberty case on its docket yet, the BJC podcast dealt with an old issue: legislative prayer. 

(Amanda Tyler, the co-host, also testified again at Congress against Christian nationalism, which is a major mission of hers.) 

The organization supports moments of silence as an option in that context. That is a good approach though if the government in question truly is evenhanded, which perhaps is a fool's errand, roving invocations might be acceptable. The problem there is yes in practice the majority usually wins out (or select disfavored groups are ignored or even blocked, like a Wiccan group is rejected). Also, for some, any mixture is even sacrilegous.  

The corrupt Supreme Court's stripping of abortion rights in Dobbs continues to have aftershocks. An important, but not final, ruling in Georgia (for now) upheld a "heartbeat" ban. Tennessee is trying to justify even blocking abortion information, which led them to lose federal funding. This is simply an outrageous interference with health care.  

I will say a bit more about The Court At War in the Supreme Court round-up, but Jehovah's Witness issues were a major concern. This group is a prime instance of constitutional rights arising from people who are at least rather annoying, if not downright offensive.  

The book, for instance, notes the author of the famous Barnette (flag salute) case dissented in many cases involving the group.* Justice Jackson thought various regulations, such as dealing with the privacy of the home [from in some cases repeated visits from missionaries] were legitimate.  

A rare unanimous loss was Chaplinsky v. New Hampshire (1942), which is even more striking that Justice Frank Murphy (who at times was a sole dissenter) wrote the opinion. The Wikipedia article notes there is some claim to argue that Chaplinsky's cries of "damned racketeer" and "damned Fascist" were understandable in context. The opinion notes:

Chaplinsky's version of the affair was slightly different. He testified that, when he met Bowering, he asked him to arrest the ones responsible for the disturbance. In reply, Bowering cursed him and told him to come along. Appellant admitted that he said the words charged in the complaint, with the exception of the name of the Deity.

The opinion, for some reason, argued the claims that provocation as defense was solely a state matter. Why it does not fall under federal due process is not clear to me.  

Also, "Bowering" here is not just someone in the crowd. He is a town marshall. Noting that in 1942 (after the U.S. entered WWI) terms like "fascist" had more power than today, it is still dubious to apply the "fighting words" rule in this context. Later opinions made it harder to get a conviction in these cases. I don't think these facts would do it.  

(The book notes that Frankfurter labeled his opponents on the Court -- at first Black, Douglas, and Murphy -- the Axis. During WWII, now those are fighting words.)  

* [Added] The cases are still a timely discussion of some of the harder questions when dealing with religious liberty in the modern world.

Martin v. City of Struthers, for instance, was a 5-4 ruling where the dissent (Jackson did this separately) argued the regulation was a legitimate regulation of privacy of the home. The test then would be line drawing.

Note too how the dissent references an important principle: "Changing conditions have begotten modification by law of many practices once deemed a part of the individual's liberty." 

Other dissents have a more extended analysis of the meaning of religious liberty and its limits. Likewise, there is a concern that the cases are being handled without carefully examining specific facts. The "case or controversy" rule and good practice require more careful analysis. 

These concerns are now made by many modern-day liberals when religious accommodations are argued to be taken too far. Then, it was the start of the application of the religious clauses in modern jurisprudence. We have our modern-day "Jehovah's Witnesses," including those with much more influence, up to and including the Speaker of the House.