Wait, you mean there was another important religion story during the traffic jam of stories about the right vs. further right showdown at the Southern Baptist Convention and America’s Catholic bishops arguing about Holy Communion, the Catechism and liberal Catholic politicos?
Obviously, I noticed headlines such as this one in the Washington Post: “Supreme Court unanimously rules for Catholic group in Philadelphia foster-care dispute.”
The word “unanimous” is certainly important, in the fractured age in which we live. But look for the other crucial word in the overture on that story:
The Supreme Court ruled unanimously … that Philadelphia was wrong to end a Catholic group’s contract to provide foster-care services because the organization refused to work with same-sex couples.
It was the latest victory for religious organizations at the increasingly conservative court, and the second time it has ruled against governments trying to enforce an anti-discrimination law protecting LGBTQ rights against those claiming religious liberty.
But the opinion, written by Chief Justice John G. Roberts Jr., was narrow enough to draw the support of the court’s three liberals — and the consternation of its three most conservative members for not going further.
Obviously, the crucial word is “but.” This ruling encouraged some church-state conservatives, but also provided some hope for those who believe that the Sexual Revolution will, more often than not, trump the free exercise of religion.
So, it’s time for two think pieces that explore the degree to which this ruling was a win for religious liberty.
No surprise here: Religious liberty pro David French, of The Dispatch, was encouraged: “Four Things You Need to Know After a Huge Day at SCOTUS — ‘Good night, Employment Division v. Smith. Good work. Sleep well. I’ll most likely kill you in the morning.’ “ Here is his reaction, at the level of SCOTUS personalities:
If you’d told me six months ago Justice Sonia Sotomayor would join all eight other SCOTUS justices in ruling that the City of Philadelphia discriminated against Catholic Social Services (CSS) when it punished CSS for refusing to certify same-sex couples as foster parents, I’d have laughed. The very thought was absurd. But that’s why you litigate the case.
If you’d told me six months ago that Justice Amy Coney Barrett would help save Employment Division v. Smith — the much-maligned 1990 SCOTUS decision that dramatically curtailed religious free-exercise rights — I would have been surprised. Many others would have been shocked. But that’s why you litigate the case.
The bottom line: Once again the court of Chief Justice John Roberts sought unity instead of a sweeping decision with long-term power. On Twitter, French offered a baseball analogy.
Think of the streak of SCOTUS religious liberty wins in baseball terms. Single. Double. Single. Single. Double. Fulton was a ringing single to center field.
It’s a reminder that SCOTUS tends to decide a case, not a cause, and that incrementalism is the rule not the exception.
— David French (@DavidAFrench) June 17, 2021
On practical issues, the court noted that allowing a Catholic agency to follow Catholic doctrines was clearly not preventing same-sex couples from being able to adopt children in Philadelphia, since they had a wide variety of other options.
But the key question here was whether the court would topple Employment Division v. Smith, a much-debated 1990 decision that has, like a bad toothache, annoyed church-state conservatives ever since (even though Justice Antonin Scalia, a hero for the right, wrote the majority opinion).
French goes pretty deep into the weeds on why the court paused at this time, then draws this image from popular culture:
… I’ll go with a Princess Bride version of this quote: “Good night, Employment Division v. Smith. Good work. Sleep well. I’ll most likely kill you in the morning.” So no, Philadelphia should not feel like it can simply tweak its policy and achieve a different result. Fulton not only vindicated CSS’s right to be free from religious discrimination, it forecast an even stronger religious liberty jurisprudence in the future.
Thus, French was pleased and optimistic. That was not the case at The Washington Examiner, where Quin Hillyer channeled the grumbles of many impatient conservatives. The headline: “Conservatives still seem to never get big court wins.”
His bottom line: The Roberts court keeps “punting” when dealing with the issues that matter most to cultural conservatives. Remember the narrow ruling in the Masterpiece Cakeshop case, a conflict that appears to be headed back to SCOTUS once again for more input?
To understand that frustration, first consider this week’s decision not by the Supreme Court but by a Colorado judge doing an end-run around an earlier Supreme Court decision. The issue is now famous: Cake artist Jack Phillips creates confections for any customer in general but reserves the right to refuse to bake products that imply endorsement of particular messages he believes are contrary to his faith. Colorado activists and authorities, though, insist he must bake cakes celebrating “progressive” positions in the gender-bending wars.
The Supreme Court already ruled once in Phillips’s favor, but, very much to the point here, on narrow grounds. Rather than wholeheartedly affirming Phillips’s religious liberty claims, the court in 2018 instead ruled merely the particular process used, and attitudes expressed by a Colorado reviewing board demonstrated illicitly overt hostility to his faith. However, the court did not answer the central question of how fundamental Phillips’s religious rights are in and of themselves.
The result was predictable: Colorado activists again began harassing Phillips, trying to exploit the high court’s loopholes to force him to use his expressive abilities to their satisfaction.
Now, with the Fulton case, Hillyer believes that the Court appears to have said, “Second verse, same as the first…” The most conservative members of the Roberts court were divided on what to do.
Rather than wholeheartedly affirm the Catholic organization’s religious exercise claims, the court ruled in Fulton v. Philadelphia that the city’s system failed because it allows individual exceptions to its “non-discrimination” policy, and that if exemptions are discretionary, it means the policy itself is not “generally applicable” in a way that lets it disfavor religion. Notably, Justices Amy Coney Barrett and Brett Kavanaugh not only agreed to this narrower ruling but also filed a concurrence expressing at least some skepticism about the extent and force of the broader religious liberty claims sought by conservatives.
It was left to Alito, joined by Justices Clarence Thomas and Neil Gorsuch, to write separately that the religious liberty claim should be seen as a “bedrock constitutional right.” Because only those three, rather than a majority, agreed to that interpretation, the city of Philadelphia might be able to revise its policy at the edges, removing its one “discretionary” aspect and again make the Catholic organization ineligible to partner with the city on behalf of foster children.
In sum, Catholic Social Services, just like Jack Phillips, may be forced into another lengthy, expensive round of litigation. …
What next? That’s the issue, isn’t it?
Journalists who cover church-state issues may want to file these away, since it is clear that these issues have legs.
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