The Supreme Court ruled 9-0 Thursday that Philadelphia cannot tell a Catholic employment agency to violate its faith as a condition of its city contract – a victory for religious freedom. Yet, as Judge Samuel Alito writes in a 77-page article heart cry Okay, the faithful are no longer due under the First Amendment.
The facts in Fulton v. Philadelphia show who the cultural and legal aggressor is. The Catholic Church has cared for orphans in Philadelphia since at least 1798, long before foster care was a government service. Catholic Social Services (CSS) has been operating under a city contract for 50 years. No gay couple has ever applied to CSS for certification as a host family. Twenty-seven other groups meet this need.
This was the situation until 2018, when a newspaper quoted the archdiocese’s spokesperson as saying that CSS could not certify a hypothetical gay couple seeking his services. A city commissioner told CSS that âthings have changed for 100 yearsâ and âit would be great if we followed the teachings of Pope Francis. The city then refused to renew CSS’s contract. Foster parents sued, including Sharonell Fulton, a black foster mother who has cared for 40 children over 25.
The good news is that no judge sided with Philadelphia. But it’s hard not to read the Court’s narrow opinion, written by Chief Justice John Roberts, as yet another example of how it seeks consensus by watering down principle. He wants to win over the liberal judges and he hesitates to take the heat of overturning even dubious precedents. But the cost is less protection for religious belief which is increasingly under siege by the state.
In this case, the previous key is Division of Employment c. Smith (1990), who stated that the First Amendment is not necessarily offended when a âgenerally applicableâ law places âancillaryâ burdens on religion. Getting six votes, the Chief’s approach is to say that Philly’s non-discrimination demand did not count as âgenerally applicable,â since the city’s hospitality contracts reserved the right to make exceptions.
“The City offers no compelling reason,” writes the Chief Justice, “why it has a vested interest in denying an exception to CSS while making them available to others.”
The optimistic opinion is that this makes Black-smith more hospitable to the faithful, at a time of increasingly intolerant secularism. The pessimistic view is that the majority have used case-specific facts to dodge the real question, leaving the fate of Black-smith for another day, after God knows how many more trials. When Philly releases her next hospitality contracts, Judge Alito asks, what if she just removed the exemption clause? “There,” he wrote, “today’s decision will fade away and the parties will be back to where they started.”
The concurring opinion of Judge Alito, joined by Justices Neil Gorsuch and Clarence Thomas, is a tour de force in the original interpretation of the free exercise clause. He convincingly argues that Black-smith is contrary to the meaning of the First Amendment, citing colonial examples, such as Georgia’s 1777 shield for religious exercise, “provided it is not contrary to the peace and security of the state.” . Quakers were exempted from taking the oath. The Mennonites were released from service in the militia.
Strict wine ban could satisfy Black-smith, argues Judge Alito, but that would prevent the celebration of Catholic Mass. If that sounds too far-fetched, imagine laws banning the circumcision of infants (proposed in San Francisco in 2010) or banning the slaughter of animals without first making them unconscious (enacted in parts of Europe), “even if that would ban kosher and halal slaughter”.
The Chief Justice’s opinion is disappointing, although not surprising at the moment. Most notably, he was joined by the last two Tories, Justices Amy Coney Barrett and Brett Kavanaugh. Had they joined Judge Alito, the court would have had a 5-4 majority for a stronger statement protecting religion.
Judge Barrett also drafts an agreement, joined by Judge Kavanaugh, who was skeptical of Black-smith, while wondering what would replace it. The answer, in the contests of Judges Alito and Neil Gorsuch, is that the pre-Black-smith the precedents were more than sufficient. “The court issued a suspicion of a ruling that leaves religious freedom in a confused and vulnerable state,” writes Judge Alito.
He is right. The Little Sisters of the Poor, who oppose ObamaCare’s contraceptive rule, have twice gone to the Supreme Court and President Biden has vowed to continue harassing nuns. Unlike the liberals of 30 or even 10 years ago, secular progressives today are openly hostile to religious freedom, which needs a Supreme Court ready to defend it.
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