During his career as a litigator, Johnson took positions in line with the Supreme Court’s First Amendment jurisprudence. How dare he!
In an op-ed for Politico, Kim Wehle looks at Speaker Mike Johnson’s record as a litigator and accuses him of taking
different positions on constitutional issues depending on who the parties are. For instance, Johnson has been a fervent advocate of First Amendment protections — for Christians. When nonreligious secularists brought a religion-based challenge, he took the other side, defending the government (emphases in original).
Johnson’s legal activism, she adds, “has consistently been for the same religion — and not evidently in furtherance of an even-handed legal principle that would protect all religions equally (in addition to the right to reject religion altogether).”
The two central charges Wehle makes, then, are that Johnson has been inconsistent on matters of constitutional principle and that he has been inconsistent because he seeks a privileged position for Christianity in constitutional law. Perhaps these charges are true: I will not claim to have a deep familiarity with everything Johnson has said on these subjects. This op-ed, however, offers no evidence at all for either contention.
Wehle writes that it is “especially telling” that Johnson favored letting a religious organization have access to a state tax incentive in one case, Ark Encounter, Inc., v. Parkinson, and also favored letting a school board open its meetings with prayers from local clergy in another case, Doe v. Tangipahoa Parish School Board.
Where’s the inconsistency supposed to be between these two cases? And where’s the Christian supremacism, for that matter? Was Johnson trying to squelch non-Christian speech while letting Christian speech proceed unrestricted? No. Did he try to ensure that tax incentives would go only to religious groups? No. Did he deny that “nonreligious secularists” have First Amendment protections? No. (He denied that the First Amendment protects anyone against hearing something that does not accord with his religious views at the opening of a public meeting.)
In the first case, religious organizations were found to have the same access to a tax incentive as nonreligious organizations. In the second case, Johnson’s argument — on Wehle’s own telling! — invokes in the school board’s defense its statement that it was not approving or endorsing any religious views and not taking sides between religion and non-religion.
Underlying Wehle’s confused accusations is an actual disagreement. Her comments imply a commitment to the establishment-clause jurisprudence that the Supreme Court promoted, fitfully and incoherently, from the middle of the 20th century onward. That jurisprudence took an expansively conceived establishment clause to be in perpetual conflict with the free-exercise clause. Wehle follows that tradition in simply asserting that these clauses are “inherently contradictory.” If that were true, it would take a lot of the sting out of the charge of interpreting them in contradictory ways. But the Court in recent decades has been, thankfully, moving away from that view of what is in truth one religion clause.
The Court’s trajectory has disoriented people who considered the novelties of mid-20th-century America to be something like eternal verities. One response has been to resort to name-calling. Wehle writes:
By pursuing a legal strategy that treats the Christian faith as under assault in America by the political left (which has infiltrated government), and aggressively defends religious rights for fear that “those freedoms will be taken away” by a secular government, Johnson keeps close company with a number of far-right justices on the U.S. Supreme Court. They include Justice Samuel Alito, who in 2021 delivered a lecture bemoaning the “hostility to religion or at least the traditional religious beliefs that are contrary to the new moral code that is ascendant in some sectors,” and Justice Amy Coney Barrett, who told Notre Dame law graduates that their legal careers are “but a means to an end” of “building the kingdom of God.”
Obviously the political left exercises some influence over government, and equally obviously it exerts that influence, at least some of the time, to limit the freedom of action of religious believers and organizations. Acknowledging these points does not place one on the “far right.”
“Keeps close company with” is a phrase useful only for insinuation, but Justice Barrett was not making any direct comment about the relationship between churches and governments or about the political left or right. She was saying that Christian lawyers, like other Christians, should strive to do God’s work. But a commitment to understanding other points of view does not appear to be high on Wehle’s list of priorities.
Her zeal keeps her from even noticing the glaring consistency in Johnson’s stand in both cases: His side won both of them. His alleged fault, in other words, was to take positions in line with the Supreme Court’s First Amendment jurisprudence. How dare he!