They don’t realize it, but liberals have just declared that Obama’s HHS mandate -- which forced Catholics to cooperate with providing abortion and contraception -- is unconstitutional.

The new interpretation of the Establishment Clause espoused by the activist judges who are striking down Trump’s EO is that anything that has a disparate impact on a religious group is unconstitutional.

The rulings by activist judges declaring Trump’s EO on immigration to be unconstitutional were based on arguments that if the EO/law had a disparate impact on any faith, or that if the person behind the EO/law ever said anything that could be construed to violate the new liberal interpretation of the establishment clause, then the EO/law in question was unconstitutional.

Clearly since many religious groups believe that contraception and abortion are morally licit while the Catholic Church, and some Protestant denominations, believe that contraception and abortion are not morally licit any EO/law that requires funding contraception and abortion will have a disparate impact on Catholics since it forces them to violate their deeply held religious beliefs.

Further, even if liberals argue that the HHS mandate is not discriminatory on its face all conservatives have to do is show that anyone involved in generating it ever said anything negative about the Church’s stance on abortion to meet the criteria set by the activist judges.

After all the liberal judges admitted that Trump’s EO itself is not discriminatory but that because Trump supposedly said discriminatory things during the campaign the EO is unconstitutional.

Interestingly, that means that if the exact same EO had been issued by Obama, Bush, Clinton, or any other president it would have been Constitutional. 

Even the ultra-liberal Supreme Court Justice Earl Warren recognized that it’s not sane to strike down a law which is on its face legal, as the Hawaiian judge admitted, because of supposed illicit motives:

“This Court will not strike down an otherwise constitutional statute on the basis of an alleged illicit legislative motive.”

This newly found liberal orthodoxy is germane to other aspects of the liberal judicial agenda.

For example saying that Christian bakers must supply cakes to gay weddings is clearly unconstitutional for two reasons, the first being that not all religions object to gay weddings, hence the ruling on the face of it violates the Establishment Clause by having a disparate impact on different faiths and second because supporters of the rulings forcing Christians to go against their beliefs have publicly stated that they disagree with those Christian’s beliefs.

Hence judicial fiats demanding that Christians go against their beliefs with respect to gay weddings fail both of the criteria established by the liberal judicial activists; they have an explicit disparate impact on different faiths and the supporters of these rulings have publicly expressed a bias against Christian beliefs and a desire to make exercising those beliefs illegal.

Another example is that under the new Establishment Clause interpretation any law that rejects school vouchers is unconstitutional. That’s because some faiths have schools and some don’t. Hence denying vouchers has a disparate impact since the faiths that don’t have schools aren’t impacted while faiths that do have schools are.

Further, it’s a historical fact that the Blaine amendments banning financial support to religious schools were passed by lawmakers who openly declared that the objective was to prevent funding Catholic schools, which makes those laws unconstitutional under the new liberal view.

One last example, of the many that are available, is that any attempt to force Catholic hospitals to perform abortions is clearly unconstitutional under the new interpretation of the Establishment Clause, since non-Catholic hospitals will not be impacted by such laws while Catholic ones will. But that clearly shows a disparate impact and of course the people who push for such laws are quite open in announcing their disdain for Catholic beliefs.

The reality is that this new view of the Establishment Clause can be used to eliminate almost the entire liberal agenda on social issues.

While we know that a core belief of liberalism is a deeply seated hypocrisy, and hence liberals will argue against applying the “reasoning” about the EO to anything they like using the logical consequences of liberal “reasoning” may help convince low information voters of the absurdity of the liberal position.

Also, if the activist rulings about Trump’s EO are not overturned then conservatives can use the new interpretation to legally assail much of the anti-religious agenda of the activist judges who are striving to impose their personal beliefs on America via fascist processes.

Understanding the implications of the latest bit of judicial activism makes it clear that the liberals have handed us a win/win situation.  If the courts uphold the latest bit of fascist overreach by activist judges then conservatives can use that to dismantle a great deal of previous judicial activism.  On the other hand if the courts strike down the insane reasoning of these activist judges conservatives win because the legal coup against Trump will have failed.

You can read more of tom’s rants at his blog, Conversations about the obvious and feel free to follow him on Twitter