The U.S. Supreme Court should correct the ongoing problem of judges subtly replacing believers’ understanding of what their religion requires with the judge’s own beliefs while evaluating religious liberty cases.
It was a problem when judges imposed their own theological interpretations on nuns during the height of the contraceptive mandates under President Obama. And it’s a problem today when judges tell a Native American church to just go worship somewhere else, even though the church believes certain ceremonies can only be done at one place on earth.
When you go before a judge, it is well-established law that the judge is not supposed to decide whether your religious beliefs are right or wrong, wise or foolish, logical or nonsensical. Judges are not supposed to substitute their own religious beliefs or theological interpretations for those of the litigants in their courtroom. As the Supreme Court has said, “Courts are not arbiters of scriptural interpretation.” They are simply not competent to evaluate religious beliefs.
So, when someone brings a case arguing that the government is infringing on religious liberty, judges should tread carefully. The law allows judges to consider whether a person is sincere in his religious beliefs — does this person truly believe what he says he believes or is this a sham? That’s generally a permissible line of inquiry.
However, what a judge can’t do is substitute their own religious beliefs or theological interpretations for those of the litigants in the courtroom. Although this is a well-established principle, in practice, judges sometimes cross the line.
We saw this during the height of the contraceptive mandate legal battles. The Little Sisters of the Poor and many others held sincere religious objections to funding or participating in providing contraceptives as a part of health plans offered to their employees. They testified that offering the contraceptives as a part of their health plan made them morally complicit in something that they believed went against their religious beliefs.
Yet, judge after judge ruled that the nuns’ religious beliefs were not burdened by the government forcing them to provide contraceptives in their health plans because the judges thought, when you look at it a certain way, the nuns were far enough removed from the provision of contraceptives to not be morally implicated. But that’s not the right question. It’s not the place for judges to say at what point you should feel morally complicit. That’s a theological judgment fundamentally prohibited by the First Amendment.
