In what turned out to be her final dissent, Justice Ruth Bader Ginsburg opened with a warning: “In accommodating claims of religious freedom, this Court has taken a balanced approach, one that does not allow the religious beliefs of some to overwhelm the rights and interests of others who do not share those beliefs.” But, to her deep dismay, she wrote, “Today, for the first time, the Court casts totally aside countervailing rights and interests in its zeal to secure religious rights to the nth degree.”
As it happened, this case centered on contraception, thus poignantly bringing together her views on religious freedom with her life’s work on gender equality. The latter, especially her commitment to women’s rights—first as an advocate through the ACLU’s Women’s Rights Project and then as a judge—is perhaps most well-known. But her commitment to equality in the realm of religious freedom is no less important.
As the first Jewish woman to sit on the nation’s highest court, Ginsburg understood what it meant to be a religious minority. In the weeks following her death, much has been made of the piece of Jewish art that hung in her chambers: “tzedek, tzedek tirdof.” The words from Deuteronomy 16:20, “Justice, justice you shall pursue,” served as the animating force behind her work as a litigator and a law professor, a federal judge and a Supreme Court justice. But what did justice mean for RBG when it came to religion?
Two interlocking commitments grounded Ginsburg’s religion jurisprudence: first, a worldview shaped by being a religious outsider, a Jew in a demographically and culturally Christian society; and second, a sensitivity for the vulnerable, an ethos that underscored the relevance of power dynamics in interpreting the impact of laws. Together, these insights meant that she understood that coercion, in the religious realm, was not simply a matter of government imposition or obstruction. Religions can impose on others, and she vehemently resisted all forms of religious coercion, whether from the government, another religious group, or one’s own religious tradition.
As the Supreme Court takes up cases on its religion docket this term, Ginsburg’s absence will be palpable. On the day after Election Day, the Court will hear Fulton v. City of Philadelphia, a case about whether Philadelphia can exclude Catholic Social Services (CSS) from the city’s foster care system because it refuses to place children with same-sex or unmarried couples. Like a number of recent cases, it appears to pit anti-discrimination law against religious freedom. Whereas Ginsburg understood that when the government offers funds or delegates tasks to private entities, it can condition participation on adherence to anti-discrimination law, it’s doubtful that her likely replacement, Amy Coney Barrett, will rule similarly.
Ginsburg’s understanding of religious freedom as a balancing act can be traced over her 40 years as a federal judge, often through her dissents. In the 1980s, as a judge on the D.C. Circuit, she—along with fellow future Supreme Court Justice Antonin Scalia—signaled support for Air Force Captain Simcha Goldman’s right to wear a yarmulke, a religious head covering, while on duty. The prohibition, she argued, “suggests ‘callous indifference’ to Dr. Goldman’s religious faith,” and deference to military policy was, therefore, unwarranted. Goldman would go on to lose in a fraught 5-4 decision at the Supreme Court, though Congress later intervened and legislated permission for religious head coverings to be worn while in military uniform.
Ginsburg’s position emphasized that a seemingly neutral government policy could be remarkably insensitive and exclusionary—and thus a problem. Her ability to see and chide casual religious ostracism emerged more clearly over time. In 2014, the Supreme Court heard Town of Greece v. Galloway, a case about opening town meetings with a prayer from clergy, all of whom happened to be Christian. RBG assigned the dissent to Justice Elena Kagan. Why? In her view, the Establishment Clause required a robust conception of religious diversity, and Ginsburg emphasized that Kagan wrote from the perspective of a religious outsider. “She was an outsider even in her own religion in that she had to fight to be an insider. She had to fight to be the first girl bat mitzvahed in her Orthodox synagogue. She was insistent … I think she has that sensitivity. It’s something that my colleagues don’t really get because they haven’t been in that situation.”
“That situation,” which meant embodying the dual roles of the religious outsider—as a Jew in a predominantly and culturally Christian society and as a woman within traditional Judaism—also granted Ginsburg a perspective many of her fellow justices lacked. Indeed, when RBG arrived at the Supreme Court in 1993, there had not been a Jewish justice since Abe Fortas resigned in 1969. The court’s customs reflected this, with no one noticing (or caring) that the law mandating starting the new term on the first Monday in October could collide with the Jewish High Holidays. In 1995, after Justice Stephen Breyer joined the court, Yom Kippur, the most sacred day in the Jewish calendar, fell on Wednesday, October 5—what should have been a day of oral arguments. The conflict was irregular, but real. After some behind-the-scenes negotiating, Ginsburg helped ensure that the Court would always adjust its schedule to avoid the problem. As she recalled the story later, she commented that “people of good will can accommodate sincerely held religious beliefs without undue disturbance of other interests.”
Over the past few years, this emphasis on balancing competing interests in religion cases crystallized in five 7-2 cases in which Ginsburg and Justice Sonia Sotomayor dissented together: Trinity Lutheran (2017), Masterpiece Cakeshop (2018), American Legion (2019), Morrissey-Berru (2020), and Little Sisters (2020).
The topics of these cases ranged, of course. They included conflicts over playground resurfacing, wedding cakes, memorial crosses, religious school employment, and contraception; and they each arose from particular circumstances, in specific places, with distinct litigants. Nevertheless, they all raised questions about how, if at all, the government could or should engage with—be it with support for or by limitations on—religion.
One of the hallmarks of the American landscape of religion is voluntarism. Per the Establishment clause, there is no state church, and per the Free Exercise clause, individuals choose how to be, or not to be, religious. Many have argued that this “free marketplace of religion” has helped sustain the ever-expanding diversity of American religions. Others have hailed the importance of non-interference as essential for the independence, creativity, and strength of various religious traditions. And then there are also those who view the government’s role as a protector of religion, and they seek greater fortification and fewer constraints. This latter group has found favor with the court’s conservative majority and, on occasion, Justices Breyer and Kagan too.
Yet when the government tips the scales toward insulating religion from regulation, there are costs. As Ginsburg underscored in her dissents, adulation creates an unbalanced marketplace of religion. After all, as she had to point out in American Legion, a recent case about the acceptability of a publicly supported World War I memorial in the shape of a cross, “the Latin cross is the foremost symbol of the Christian faith.” Despite the majority’s claims that a 40-foot cross had acquired a “secular” meaning, Ginsburg highlighted (accurately!) that crosses did not adorn Jewish soldiers’ graves and “precisely because the cross symbolizes these sectarian beliefs, it is a common marker for the graves of Christian soldiers.” It is not, therefore, secular. Thus, she continued, “maintaining the Peace Cross on a public highway … elevates Christianity over other faiths, and religion over nonreligion.”
She pointed out that multiple forms of coercion can arise without “governmental neutrality among religious faiths, and between religion and nonreligion.” A critical element of Ginsburg’s religious freedom jurisprudence was a focus on volition: Religious praxis was to be chosen and, at the same time, it was not to be imposed on others.
Indeed, for Ginsburg, concerns about religious coercion were not limited to what the government might demand of religious Americans. She also apprehended the dangers of religious Americans imposing religion on one another. This logic was most evident in Masterpiece Cakeshop and Little Sisters, which centered on claims for religious exemptions from anti-discrimination laws and the contraceptive mandate of the Affordable Care Act. In each of these cases, she took a holistic approach that not only analyzed the religious claims but also the burdens of those claims. In Masterpiece Cakeshop, for example, she zeroed in on the distribution of power and thus harm. “What matters,” she wrote, “is that [the baker, Jack] Phillips would not provide a good or service to a same-sex couple that he would provide to a heterosexual couple.”
The emphasis on balancing religious rights and religious burdens reached its fullest expression in Little Sisters, her last dissent. She repeatedly foregrounded the disparate impact of absolute solicitude to religion, and she did so with incredulity, as in footnote 20: “Remarkably, Justice Alito maintains that stripping women of insurance coverage for contraceptive services imposes no burden.” This calculated indifference to consequences horrified Ginsburg. It not only fortified her analysis of the case, but also encapsulated how she approached religious freedom cases more broadly.
Since 1993, many of the religion cases that reach the Supreme Court are litigated under the Religious Freedom Restoration Act (RFRA). This statutory framework asks if an otherwise neutrally applicable law “substantially burdens” a sincere religious belief; if the government has a “compelling interest” in so doing; and if the government has used the “least restrictive means” to accomplish its goal. But Ginsburg recognized that burdens and harms flow in both directions, and when values, such as women’s equality and religious freedom, are in tension, the government must balance multiple moving parts.
In Little Sisters, therefore, Ginsburg argued that the Court could not simply heed the anti-contraception beliefs of religious employers. It had to account for the material impact on employees as well. In this case, that meant recognizing that “between 70,500 and 126,400 women would immediately lose access to no-cost contraceptive services.” Leaving these women to “fend for themselves” was unconscionable as it let a religious exemption “condone harm to third parties occasioned by entire disregard of their needs.” More specifically, the problem with Justice Alito’s concurrence, which would mandate (rather than simply validate) a religious exemption, was that it legitimized religious coercion of others. As she put it, he “ignores the distinction between (1) a request for an accommodation with regard to one’s own conduct, and (2) an attempt to require others to conform their conduct to one’s own religious beliefs.” This was unacceptable.
For Ginsburg, religious freedom ends when it tramples on other people’s autonomy. Whether the perpetrator is the government or a religious employer, the problem lies in coercion. Religion in the United States—whether understood as belief, ritual, belonging, or ethical obligation—must maintain itself through choice, not force.
This rendering asserts that religion is most powerful when it is most voluntary. In this, Justice Ginsburg follows the legacy of her biblical namesake. Ruth, a religious outsider, a Moabite woman, elects to follow her mother-in-law Naomi back to the land of Judah. Yet three times Naomi tries to turn her back. Undaunted, Ruth proclaims, “Wherever you will go, I will go; wherever you lie down, I will lie down; your people will be my people, your God is my God.” This conversion story—and indeed the future of the Israelites through the line of David—hinges on a woman’s choice.
But choice, in religion or any other domain, does not exist in a vacuum. As Ginsburg knew all too well from her work on women’s equality, the ability to exercise choice is constrained by structures of power. Thus, for Ginsburg, justice required a contextual reading of both law and its impact. Justice, in the words of another phrase from the Hebrew Bible, meant “do not put a stumbling block before the blind” (Leviticus 19:14). The idea that laws should not make people more vulnerable, materially harm them, or force them to carry a heavier burden was central to Ginsburg’s jurisprudence—and, especially, her analysis of religion in the United States.
Building an enduring foundation for equality under the law in American society means caring about the impact and consequences of the law on other people, including those who do not share the same religious values. For Ginsburg, the crux of vulnerability in religion cases was not necessarily borne by the religious claimant; it could just as easily be imposed on someone else. The distribution of power in religion cases was therefore central to her analysis: Who sought free exercise for themselves and who sought to limit the free exercise of others? And this is a key point distinguishing the Court’s religious conservatives from its religious liberals. It’s not a question of who is religious, but of how they understand religion operating in the world. Is religion a tool through which to wield coercive power or a shield to protect the vulnerable from coercion?
Ronit Y. Stahl is assistant professor of history at the University of California, Berkeley, and the author of the award-winning book, Enlisting Faith: How the Military Chaplaincy Shaped Religion and State in Modern America. She is a former postdoctoral fellow at the John C. Danforth Center on Religion and Politics.