June 17, 2021

"The refusal of Philadelphia to contract with CSS for the provision of foster care services unless [Catholic Social Services] agrees to certify same-sex couples as foster parents violates the Free Exercise Clause of the First Amendment."

 The Supreme Court has just ruled in Fulton v. Philadelphia.

ROBERTS, C. J., delivered the opinion of the Court, in which BREYER, SOTOMAYOR, KAGAN, KAVANAUGH, and BARRETT, JJ., joined. BARRETT, J., filed a concurring opinion, in which KAVANAUGH, J., joined, and in which BREYER, J., joined as to all but the first paragraph. ALITO, J., filed an opinion concurring in the judgment, in which THOMAS and GORSUCH, JJ., joined. GORSUCH, J., filed an opinion concurring in the judgment, in which THOMAS and ALITO, JJ., joined.

I'll have much more about this soon.

UPDATE: This is a unanimous decision. The existing precedent, Smith, applies strict scrutiny to burdens on religion only when there isn't a neutral and generally applicable policy, which there wasn't here. The concurring opinions are about overturning that precedent and giving even more protection from substantial burdens on religion. 

The Barrett opinion is critical of Smith but frets about what doctrine would replace it and finds it unwise to go any further. The paragraph Breyer doesn't join is the one that is critical of Smith.

Alito wants to overturn Smith and views this case as showing why Smith is so dangerous. The majority was able to get to strict scrutiny because there happened to be a provision empowering a city official to give exemptions. But the city hasn't given exemptions and could easily now eliminate that provision and make it's policy neutral and generally applicable. Thus: "This decision might as well be written on the dissolving paper sold in magic shops." 

Alito goes on at great length in an attack on Smith that will feel entirely familiar to anyone who's been paying attention to Free Exercise Clause doctrine. Clearly, he setting up for the next phase, and we can see that there are the 5 votes to overrule Smith, if only Barrett and Kavanaugh can be presented with a practical enough new doctrine.

AND: Here's the NYT article by Adam Liptak, "Supreme Court Backs Catholic Agency in Case on Gay Rights and Foster Care/The unanimous ruling was further evidence that claims of religious liberty almost always prevail in the current court." Key speculation:

The court’s three-member liberal wing — Justices Stephen G. Breyer, Sonia Sotomayor and Elena Kagan — joined the opinion, which was a surprise and may have been part of an effort to avoid a broader ruling that might have allowed religious objections to override all sorts of government policies and programs.

Breyer must have played an important role, since he also teamed up with Barrett and Kavanaugh, who might otherwise have heeded to the powerful call of Alito, Gorsuch, and Thomas.


Ann Althouse said...

Richard writes:

The opinion by CJ Roberts was very odd, trying so hard not to decide anything of significance (and achieving that dubious goal). It holds that a contractual discretionary power to make exceptions from Philadelphia’s general requirement prohibiting discrimination against gay couples is enough to avoid Smith — supposedly because the discretionary power means that the requirement is not a neutral rule of general applicability — even though the Philadelphia authorities said clearly they will never grant an exception to Catholic Services or anyone else. Gorsuch skewers the logic behind that maneuver as does Alito in more labored fashion. Gorsuch also makes the obvious point that this decision just punted the dispute — once the Philadelphia authorities get rid of the discretionary power they’ve already said they will never exercise, there’s nothing left to this decision.

Roberts and the five others who joined his opinion know all of that just as Gorsuch and Alito do. But the majority clearly wanted to punt on this one. They surely know the Philadelphia authorities won’t take the unsubtle hint to leave Catholic Services alone and that this case will be knocking on their door in two years, presenting the same issues that led four of them to grant cert but that they just ducked.

There will be lots of speculation about the judicial politics playing in the background that might make sense of this seemingly senseless exercise in not deciding. Whatever the explanation, it’s a strange way to run a country.

Ann Althouse said...

Alex writes:

I've long held the notion that Roberts can be understood as haunted by the specters of Burger and Taney. He desperately wants to avoid any controversial decisions, so instead finds the decision that will have the least impact, and then performs whatever logical gymnastics are required to make it happen. Hence, "it's a tax" of Obamacare, or rulings during Trump's administration regarding the census or the 2020 election. And yet, in his attempts to keep the court out of politics, he's driven it further into the political sphere. The left is angry that the court won't rubber stamp everything they want, while the right is angry because the court's refusal to take up larger questions often leaves a muddled mess to be exploited by progressive lawyers and blue governments. In trying to avoid creating conflict, the court has created the very conditions for disorder and violent unrest. Ironically, a stronger position by the Roberts court early on could likely have avoided all of this. Instead, I suspect that history will view Roberts as ultimately a disaster, and one whose court led directly to the social and political upheavals the US is likely to face in the near future.

Ann Althouse said...

What Roberts is doing is minimalism. That has always been his brand.

Scalia — who wrote the Smith opinion — argued that minimalism looks like judicial restraint but it is in fact a judicial power grab. Smith, per Scalia, was supposed to get judges out of this kind of litigation. Just make a straightforward, exceptionless rule and religions will have to follow it like everybody else. But that set up a new approach of looking for the ways in which the rule allows for exceptions, and you get decisions like this, and religion can get the exception it wants.

Ann Althouse said...

David writes:

The rising number of Supreme Court cases involving religious freedom is a reflection of a fundamental decline in Christian Americans’ religious involvement. From 2000 through 2011 more than 40% of Christians attended church most weeks — a tidy plurality of all Americans. Since then, most Americans had little or no Christian church involvement. (Source: Barna Group “State of the Church.”)

Many politicians and bureaucrats saw this change as a chance to attack, risk free, churches and Christians whose lives displayed their faith in the secular world. After all, they’re barely more than 25% of all Americans. Their votes weren’t needed, and attacking them pleased left-social activists.

And CJ Robert’s’ minimalism is his own tepid bow to the 75% of Americans who don’t think Christianity ought to be visible in the marketplace of ideas and actions.