Thursday, June 17, 2021

WHOA! Did I Majorly Jump The Gun?

Hey, no wonder legal commentators--the good ones--read the whole opinion before commenting on SCOTUS decisions. I've just read portions of Alito's opinion at LifeSite, and it's a slash and burn opinion:

BREAKING: Supreme Court delivers narrow victory for religious freedom over LGBT ‘rights’

‘The Court has emitted a wisp of a decision that leaves religious liberty in a confused and vulnerable state,’ argued Justice Alito. ‘Those who count on this Court to stand up for the First Amendment have every right to be disappointed — as am I.’


A “wisp of a decision”

While clearly a victory for religious liberty in general, and Catholic social service organizations in particular, Justice Samuel Alito, who was joined in his concurring opinion by Justice Clarence Thomas and Justice Neil Gorsuch, warned that today’s ruling did not go far enough:

This decision might as well be written on the dissolving paper sold in magic shops. The City has been adamant about pressuring CSS to give in, and if the City wants to get around today’s decision, it can simply eliminate the never-used exemption power. If it does that, then, voilà, today’s decision will vanish — and the parties will be back where they started

Not only is the Court’s decision unlikely to resolve the present dispute, it provides no guidance regarding similar controversies in other jurisdictions. From 2006 to 2011, Catholic Charities in Boston, San Francisco, Washington, D. C., and Illinois ceased providing adoption or foster care services after the city or state government insisted that they serve same-sex couples. Although the precise legal grounds for these actions are not always clear, it appears that they were based on laws or regulations generally prohibiting discrimination on the basis of sexual orientation. And some jurisdictions have adopted anti-discrimination rules that expressly target adoption services.

Today’s decision will be of no help in other cases involving the exclusion of faith-based foster care and adoption agencies unless by some chance the relevant laws contain the same glitch as the Philadelphia contractual provision on which the majority’s decision hangs. The decision will be even less significant in all the other important religious liberty cases that are bubbling up.

LGBT organizations interpreting today’s ruling on behalf of religious freedom are echoing Justice Alito.

“Supreme Court in Fulton rules in favor of religious adoption agency, but on narrow grounds (specific to the City of Philadelphia contract),” wrote Shannon Minter in a tweet.

“A narrow decision that leaves existing law largely unchanged & creates no sweeping new religious exemption,” said Minter, Legal Director of the National Center for Lesbian Rights (NCLR).

“The Court has emitted a wisp of a decision that leaves religious liberty in a confused and vulnerable state,” concluded Justice Alito in his 77-page opinion.

“Those who count on this Court to stand up for the First Amendment have every right to be disappointed — as am I.”

It seems that the three amigos on the Court--Thomas, Gorsuch, and Alito--are pretty fed up already with the cautious approach that Justices Amy and Brett have adopted. Is that caution in deference to Roberts? That can only be speculation on my part. Whatever the reason, these three clearly want the Court to adopt a more aggressive approach in defending the Constitutional rights of Americans.

Alito is certainly correct that the City of Philadelphia can choose to continue to harass faith based agencies--for a time. OTOH, is it possible that the message has been sent to the federal courts in Philly and that the message will have been heard? Yes, it is just possible. Alito's counter to that would certainly be, What good is a Constitution and a SCOTUS is Americans have to wait years and spend huge sums to receive justice? I confess to having no ready response. After all, this approach would likely rely on the 3rd circuit adopting a stance at variance with existing law--exactly what lower courts aren't supposed to do. And in the meantime the Left's assault will continue. This looks like it won't be the setback I initially thought it would be.


  1. well, under the KISS principle, it will look like a victory for our side since the tortured explanation you have just presented will not be explainable to the huddled masses yearning to be free, so to speak. I'm reminded of the shadows and penumbras of days gone by, so while I'm not gonna take this as a win, I will consider it "not a loss"...if that makes any sense.

    OTOH, can you imagine if it had gone 9-0 the other way? That would definitely have been trumpeted as a victory for the LBGTQRSUVWYZ "movement"

  2. Scotus is sending a message with 9-0 decisions.

    Would it have been better to have a 5-4 decision that went further?

    1. Totally valid point, Ray. OTOH, Alito et allii are venting, they're frustrated--and rightly so. Possibly this message sending will work out, but the delay in justice is part of the problem, not the solution. As Alito points out, other agencies are going out of business in the meantime. Not satisfactory. Justice delayed ... is denied.

    2. Of course a 5-4 decision would have been better if it went further

      Roe v Wade was a 5-4 decision.

    3. Also totally valid. It's very frustrating. In fairness to Justice Amy, this IS a very complex issue. After all, is everyone to be allowed to claim XYZ as religious practice and get away with that? It should have been confronted long ago. The answer, of course, is that this nation was not founded on a moral and religious vacuum, i.e., it's not a libertarian nation. But ... is the SCOTUS the right forum to change that view? Not all problems can be solved by SCOTUS, which is another way of saying this nation has big problems. I doubt that's news.

    4. Of course a 5-4 decision would have been better if it went further

      Roe v Wade was a 5-4 decision.

      The conservatives may be waiting for a "better" case for a wide-ranging decision; maybe the next Masterpiece case will offer up the opportunity.

  3. When the decision can be a non decision for any freedom, it oftentimes will be.

    Still holding my breath on the Arizona election case as we see the trickle of decisions starting to unfold.

  4. Keeps them employed until the next version comes around.