Thursday, June 17, 2021

MAJOR UPDATE: Law Day #1: SCOTUS Goes 9-0 Again, And Lib Heads Will Explode

The significance of the latest 9-0 decision handed down by the SCOTUS--this one has to do with local governments trying to exclude foster care agencies on religious grounds--is that the SCOTUS is sending a strong signal that they will continue to defend the First Amendment free exercise rights of all Americans, not matter the current fashion in wokeness. That shouldn't be news, but in today's America it's a message to normals that an important institution may have their back after all. It's also a strong message to the Left, given the 9-0 breakout.

There's very little commentary out yet, but here's the link to the Fox article:

Supreme Court sides with Catholic foster agency that excludes same-sex couples in 9-0 ruling

Chief Justice John Roberts wrote the majority opinion


The Supreme Court sided unanimously with a Catholic foster agency in a dispute against the city of Philadelphia over whether it should be banned from participating in the city's foster program because it excludes same-sex couples. 

The group, Catholic Social Services (CSS), claimed that "Philadelphia’s attempts to exclude the Catholic Church from foster care" violated the First Amendment. Lawyers for the city, meanwhile, said that CSS "lacks a constitutional right to demand that DHS offer it a contract that omits the same nondiscrimination requirement every other FFCA must follow when performing services for the City." 

In a 9-0 ruling, the justices sided with Catholic Social Services. 

"CSS seeks only an accommodation that will allow it to continue serving the children of Philadelphia in a manner consistent with its religious beliefs; it does not seek to impose those beliefs on anyone else," Chief Justice John Roberts wrote in a majority opinion. "The refusal of Philadelphia to contract with CSS for the provision of foster care services unless it agrees to certify same-sex couples as foster parents cannot survive strict scrutiny, and violates the First Amendment."

Roberts was joined on his opinion by Justices Stephen Breyer, Sonia Sotomayor, Elena Kagan, Brett Kavanaugh and Amy Coney Barrett. 

Barrett herself wrote a concurring opinion, which was joined fully by Kavanaugh and partially by Breyer. 

"As the Court’s opinion today explains, the government contract at issue provides for individualized exemptions from its nondiscrimination rule, thus triggering strict scrutiny," Barrett wrote. "And all nine Justices agree that the City cannot satisfy strict scrutiny." 

Justice Samuel Alito wrote a concurring opinion that was joined by Justices Neil Gorsuch and Clarence Thomas. Gorsuch wrote a concurrence that Thomas and Alito joined. 

Alito, Gorsuch, and Thomas are in some undefined way the outliers here--or perhaps simply wished to stress some points of their own. I'll need to try to find out whether or in what respect their thinking differed from the other six--although they obviously agreed with the result.

This decision will hearten those who are struggling to maintain the Free Exercise of religion against determined and increasingly aggressive assaults from the Left. In particular, it should hearten operators of private schools. The issue was always a no-brainer--such attempts to outlaw religious exercise are patently unconstitutional when no real government interest is at stake. The law in question was an attempt to impose a secular humanist test on all citizens, and it's far from the only one.

So far only Jonathan Turley has offered a comment--that is, among legal commentators I regularly seek out. I'm sure there will be more soon, and will update accordingly if anything significant arises. Turley's single tweet is short and sweet:

UPDATE: OK, I've taken a look at the opinion and found out what was going on with the various concurrences and separate opinions. Thomas, Gorsuch, and Alito all obviously agreed with the outcome. However, they maintained that the Court should have gone further and reversed its holding in Employment Division, Department of Human Resources of Oregon v. Smith (that's the famous peyote case). The Wikipedia version of the holding in Smith runs like this:

the state can deny unemployment benefits to a person fired for violating a state prohibition on the use of peyote, even though the use of the drug was part of a religious ritual. Although states have the power to accommodate otherwise illegal acts performed in pursuit of religious beliefs, they are not required to do so.

Now, Wikipedia is very up to date on this issue. Not only do they describe the aftermath--Congress passed the Religious Freedom Restoration Act (RFRA) in 1993--but they related this to today's case--Fulton:

Congress passed the Religious Freedom Restoration Act (RFRA) in 1993, which required the application of strict scrutiny. In response to the Supreme Court's 1997 ruling in City of Boerne v. Flores, which declared the RFRA unconstitutional as applied to the states, Congress passed the Religious Land Use and Institutionalized Persons Act (RLUIPA) in 2000, which grants special privileges to religious landowners and prisoners.[6]

In Fulton v. City of Philadelphia (2021), the Supreme Court ruled that certain services like foster care certification fell outside of public accommodations that were covered by the anti-discriminatory nature of Smith, and as a result, discriminatory policies related to these services could be reviewed through strict scrutiny; in the specific case of Fulton, the Supreme Court ruled that Philadelphia's policy to not contract a religious-based foster care agency due to their anti-same sex couple policy violated their freedom of religious exercise rights.[7]

So, this is what Thomas, Alito, and Gorsuch wanted to reverse--and overturn. Justice Amy wrote a brief concurrence to the Court's opinion (p. 110-111) in which she addressed this. Here's the first paragraph--as you'll see, Justice Amy's characterization of Smith's holding is much more pointed than Wikipedia's. That's as may be. What you'll also see is that Justice Amy is also in favor of reversing Smith--but steps back:

In Employment Div., Dept. of Human Resources of Ore. v. Smith, 494 U. S. 872 (1990), this Court held that a neutral and generally applicable law typically does not violate the Free Exercise Clause—no matter how severely that law burdens religious exercise. Petitioners, their amici, scholars, and Justices of this Court have made serious arguments that Smith ought to be overruled. While history looms large in this debate, I find the historical record more silent than supportive on the question whether the founding generation understood the First Amendment to require religious exemptions from generally applicable laws in at least some circumstances. In my view, the textual and structural arguments against Smith are more compelling. As a matter of text and structure, it is difficult to see why the Free Exercise Clause—lone among the First Amendment freedoms—offers nothing more than protection from discrimination.

In other words, Justice Amy is saying that she's just as dissatisfied with the Smith standard as the other three justices--and wants it replaced, but with a more nuanced, protections of  religious freedom. Here I think she has a point. Basically she argues that, just as Smith brought a sledgehammer to the issue of free exercise, a simple overruling of Smith with application of the strict scrutiny standard might also be a sledgehammer approach:

The prevailing assumption seems to be that strict scrutiny would apply whenever a neutral and generally applicable law burdens religious exercise. But I am skeptical about swapping Smith’s categorical antidiscrimination approach for an equally categorical strict scrutiny regime, particularly when this Court’s resolution of conflicts between generally applicable laws and other First Amendment rights—like speech and assembly—has been much more nuanced.

And so she concludes that the time for overruling Smith may not be now--not until more thought goes into exactly what regime would replace Smith. This cautious approach seems by now to be characteristic of her jurisprudential philosophy. 

The bottom line, then, is that we can be happy that all nine justices are firmly of the opinion (for now) that the Free Exercise of religion is a right that should be taken very seriously. As opposed to people like that NYT writer who was so upset at seeing American flags openly flown by bitter clingers out in the wilderness of Long Island, and who openly advocated for the "marginalization" of such deplorables, the SCOTUS appears ready to stand against the marginalization of religious believers. Is it possible that they've been observing "cancel culture" and are looking to draw a line that will protect our constitutional rights?


  1. Stunned that Kagan, Breyer, & Sotomayor went this way. If RBG were still around think it would’ve been 8-1.



    1. Or 5-4.
      RBG may have exerted massive gravitational pull, and she was largely indifferent to the catastrophic consequences of imposing her world view on all.

      With her no longer putting discourse, maybe the others are finally starting to see the direction they were steering the country.


      Maybe this was the deal that threw "conservatives" brokered for ignoring the election fraud.

    2. As I write in my update, it is possible that the liberals were influenced by current excesses and that conversations among the justices may have involved far broader philosophical issues than is commonly supposed. Like, the direction of the country as a whole with threats to our constitutional order coming from the Left and supported broadly by the Establishment institutions of society.

  2. Breitbart covered the ruling. Seems the 3rd Circuit was just fine with Philadelphia'a actions against CSS.

    “Philadelphia took this extraordinary action not in response to any legal violation, nor in response to any complaint it received, but because of CSS’s religious beliefs and practices regarding marriage, which City officials read about in the local paper,” the petitioner’s brief reads, noting the Third Circuit ruled in favor of Philadelphia, considering the city’s actions “neutral.”


    1. I have no knowledge of the 3rd circuit, but the 9-0 ruling is an ipso facto slap at them and shows a broad spectrum of legal opinion at the highest possible level was completely unimpressed with the 3rd.

  3. so Mark, look what your blog has done to soon as I learned of this opinion, I thought: "can't wait to see what Mark has to say"...geez, it's like you're part of the family now. Oh well, rock on, you've still got Bergoglio to deal with...wonder what he'll say about all this :o)

    1. I was seriously toying last night with the notion of doing a Bergoglio post.

    2. why not? I'll read it at least and comment if I can. Which reminds me...haven't been to confession lately, too much to confess to, I guess. Still counting on the Good Lord to have a sense of humour when it's time to make my case

  4. oh yeah, forgot to add...all of this smack dab in the middle of "Pride Month"!!!! To misquote the greatest intellect of our time: "how dare [they]"!!!!

    1. Yep. The fact is that the marginalization of Christianity is a major part of the Left's agenda--one in which they've made substantial progress with the help of Christians--should make this decision a very bitter pill. Even if it was a no-brainer in a constitutional sense.

  5. They can't seem to steer the ship away from the circling drain of obamacare though!!! 7-2


    1. Two things--no, make that three.

      1. This is in part an illustration of Justice Amy's cautious approach--but joined by 6 others.

      2. The view may have been in part that since ACA is circling the drain, let the political process deal with it because they don't want to embarrass Roberts by overruling his bad decision so quickly. It seems at least two justices wouldn't buy that? But I'm learning a lesson about jumping the gun today.

      3. See new post when it appears, shortly.

  6. Is SCOTUS deliberately accepting cases they can deliver 9-0 on to shore up the institution?