McConnell has often maintained that the Free Exercise and Establishment Clauses of the Constitution should be guided by
what he calls “the ideals of neutrality and accommodation.”20 McConnell’s view of “neutrality,” however, is anything but neutral. He advocates an unbalanced and harmful view of the Religion Clauses that would in fact give special treatment and special rights to religious organizations beyond anything accepted even by the most conservative justices on the Supreme Court.
As discussed above, McConnell has criticized the Supreme Court’s decision in Bob Jones University v. United States, 461 U.S. 574 (1983), in which the Court held that the IRS had properly revoked the tax exempt status of a private university that practiced race discrimination which it claimed was in accordance with its religious principles. In rejecting Bob Jones’ claim that denial of the tax exemption violated the free exercise rights of religious schools, the Court noted that this action would “not prevent those schools from observing their religious tenets,” and thus not burden religious free exercise. 461 U.S. at 603-04 (emphasis added). Yet McConnell has nonetheless criticized the decision as an “egregious” example of the Court’s failing to “protect religious freedom from the heavy hand of government” –- a hand that has sought to protect university students from race discrimination, and that McConnell would remove.21
McConnell has also sought other special exemptions for religious groups from important laws, even where the courts have ruled that the laws do not burden religion. For example, representing Jimmy Swaggart Ministries in what he has called one of his ten most significant cases,22 McConnell argued before the Supreme Court that a religious organization should be exempt from general state sales and use tax regulations with respect to its sales of religious merchandise. The Supreme Court, including Chief Justice Rehnquist and Justices Scalia and O’Connor, unanimously rejected this argument. Jimmy Swaggart Ministries v. Board of Equalization of California, 493 U.S. 378 (1990). As the Court explained, the tax did not truly burden religious free exercise because it applied to “all retail sales,” even by sellers that are “charitable, religious, nonprofit, or state or local government in nature.” Id. at 389. Nevertheless, McConnell argued that religious organizations should have a special right to an exemption.
McConnell has also suggested that religious organizations, even when engaged in ordinary commercial activities, should be exempt from the requirements of the Fair Labor Standards Act (“FLSA”), an important federal labor law that protects workers by regulating hours and minimum wages. In Tony and Susan Alamo Foundation v. Secretary of Labor, 471 U.S. 290 (1985), the Supreme Court (including then-Justice Rehnquist and Justice O’Connor) unanimously held that the minimum wage, overtime, and record keeping requirements of the FLSA were applicable to the “ordinary commercial activities” of a nonprofit religious foundation. Id. at 293. In this case, those activities included the operation of “service stations, retail clothing and grocery outlets, hog farms, roofing and electrical construction companies, a recordkeeping company, a motel, and companies engaged in the production and distribution of candy.” 471 U.S. at 292. These commercial enterprises were “staffed” by “associates” of the Foundation who received no cash wages but did receive “food, clothing, shelter, and other benefits.” Id.
The Court explained that compliance with the law was required only with respect to “commercial activities undertaken with a ‘business purpose,’” that the law did not burden the free exercise of religion, and that the opposite ruling would have given the Foundation an unfair advantage over its competitors and resulted in workers receiving “substandard wages.” Id. at 299, 303, 305. Nevertheless, McConnell has criticized the Court’s opinion. In an article discussing the role of the Solicitor General, McConnell recounted that when he worked in the Solicitor General’s office, he participated in the briefing of this case on behalf of the Secretary of Labor, who prevailed. But according to McConnell, that brief “was wrong on the merits” and the Court’s decision was “singularly insensitive” to the religious claimant.23
McConnell’s strong belief that religious organizations should receive preferential and financially beneficial exemptions from the operation of important laws that do not genuinely burden the exercise of religion is so extreme that it does not find support even among the most conservative justices on the Court. However, confirming McConnell to a lifetime appointment on a federal Court of Appeals, the court of last resort in virtually all cases, would give McConnell the power to impose his extreme interpretation in new cases and in the development of federal constitutional law.
In fact, McConnell would even extend governmental powers to a religious group, as evidenced by his opinion that the Supreme Court wrongly decided Board of Education of Kiryas Joel Village School District v. Grumet, 512 U.S. 687 (1994). In this case, the Court struck down a special statute enacted by New York that had created a school district for a religious community of Satmar Hasidim. The statute had been passed in order to allow the Satmar to provide special education services within their community to their own children, rather than have those children attend public schools within the school district to which the community belonged. The Court majority held that the statute had violated the neutrality that the Constitution requires of the government when it comes to religion, delegating governmental power to a community “defined by common religious belief and practice, in a manner that fails to foreclose religious favoritism.” 512 U.S. at 710.
McConnell criticized the Court for failing to accommodate the Satmar. McConnell, “A Basic Right Turned Into A Wrong,” Chicago Tribune, July 6, 1994. See also, McConnell, “The Church-State Game: A Symposium on Kiryas Joel,” 47 First Things 40 (Nov. 1994).24 The Court majority, however, had plainly recognized that “the Constitution allows the State to accommodate religious needs by alleviating special burdens.” 512 U.S. at 705. As the Court explained, “accommodation is not a principle without limits . . . [and] we have never hinted that an otherwise unconstitutional delegation of political power to a religious group could be saved as a religious accommodation.” Id. at 706. Yet McConnell would have sanctioned just such a special delegation of governmental power to a religious group.
It is also worth noting another Supreme Court case that McConnell believes was “wrongly decided”: Reynolds v. United States, 98 U.S. 145 (1878), in which the Court upheld the conviction of a Mormon for polygamy.25 While McConnell asserts that the man “asked only that the government leave him and his wives alone,”26 in fact he was asking for a religious-based exemption from criminal laws applicable to any man who desired to have more than one wife.