Employment Division vs. Smith

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How will this Supreme Court decide, or sidestep, pivotal religious liberty questions?

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How will this Supreme Court decide, or sidestep, pivotal religious liberty questions?

The major U.S. Supreme Court ruling in Fulton v. Philadelphia (.pdf here) allows a Catholic agency to avoid placing foster-care children with same-sex couples. Importantly, the Catholics will place gay children and will place children with gay singles since there's no conscience crisis over defying the church's doctrines on marriage.

For decades there's been confusion and acrimony over the court's applications of the Constitution's ban on government "establishment of religion," but now disputes over the religious "free exercise" clause grab the spotlight. The Fulton ruling sidestepped the heart of this generation's conflagration between religious rights and LGBTQ+ rights and, thus, may even have added logs to the fire.

The justices backed the Catholic claim with what The Economist's headline correctly labeled "The 3-3-3 Court." The narrow technical grounds for the decision enabled the three liberals (Stephen Breyer, Elena Kagan, Sonia Maria Sotomayor) to make the ruling unanimous. The conservatives were split between three demanding a thorough overhaul of "free exercise" law (Justice Samuel Alito, in a vigorous 77 pages, joined by Neil Gorsuch and Clarence Thomas) and three unwilling to take the plunge at this time (Chief Justice John Roberts and the two newest members, Brett Kavanaugh and Amy Coney Barrett).

Similar caution apparently underlies the court's majority decision this week not to review transgender student Gavin Grimm's victory against his Virginia school over bathroom access.

Journalists should prepare for more years of extensive -- and expensive -- politicking and litigation before the Supreme Court defines -- or decides not to define -- how First Amendment guarantees apply in 21st Century culture.

For those on the religion beat, it is easy to see that this case has hardened the related conflict among major denominations.


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Newsy thinking about SCOTUS, sports images, religious liberty and the Sexual Revolution

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Newsy thinking about SCOTUS, sports images, religious liberty and the Sexual Revolution

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:


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Religious liberty and foster care: five key numbers as SCOTUS weighs dogma and LGBTQ rights

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We voted.

Then we waited. And fretted over the outcome. And waited some more.

While we did, perhaps some of us missed Wednesday’s arguments in the latest U.S. Supreme Court case pitting religious freedom vs. gay rights and the Sexual Revolution.

The dispute involves the city of Philadelphia ending its foster care contract with Catholic Social Services over the faith-based agency’s refusal to place children with same-sex parents.

Here are five key numbers that stood out to me:

5,000 CHILDREN IN CUSTODY

NPR’s Nina Totenberg’s reported:

On one side is the city of Philadelphia, which has custody of about 5,000 abused and neglected children, and contracts with 30 private agencies to provide foster care in group homes and for the certification, placement, and care of children in individual private foster care homes.

Reuters’ Lawrence Hurley and Andrew Chung asked a city official about the potential impact if the Supreme Court rules in favor of Catholic Society Services:

A ruling against Philadelphia could make it easier for people to cite religious beliefs when seeking exemptions from widely applicable laws such as anti-discrimination statutes.

“If individual organizations can begin to choose to discriminate against whom they want to serve, then it does begin to set an unfortunate precedent,” said Cynthia Figueroa, Philadelphia’s deputy mayor for children and families.

ZERO SAME-SEX PARENTS DENIED

Robert Barnes of The Washington Post quoted Lori Windham:

“Zero” was the answer from Windham, a lawyer for the Becket Fund for Religious Liberty, when asked how many same-sex couples had been denied the opportunity to be foster parents because of CSS policy. She said if ever approached, the agency would refer the couple to one of the more than two dozen agencies that have no issue with same-sex marriage.


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Justice Amy Coney Barrett could soon prove crucial on legal fights over religious vs. LGBTQ rights 

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Senators, other pols and the news media are agog this week over the impact a Supreme Court Justice Amy Coney Barrett, age 48, might have on abortion law long-term and -- immediately -- disputes over the election results and a challenge to Obamacare that comes up for oral arguments November 10.

But reporters on the politics, law or religion beats shouldn't ignore Barrett's potential impact on the continual struggles between religious freedom claims under the Bill of Rights versus LGBTQ rights the Court established in its 2015 Obergefell ruling that legalized same-sex marriage. Oral arguments in a crucial test case, Fulton v. City of Philadelphia [19-123], will occur the day after Election Day — when journalists will be preoccupied with furious tabulation of absentee ballots.

At issue is whether Philadelphia violated Constitutional religious freedom in 2018 by halting the longstanding work of Catholic Social Services in the city's foster care system because church teaching doesn't allow placement of children with same-sex couples.

Such disputes first won media attention when Massachusetts legalized gay marriage and in 2006 shut down the adoption service of Boston Catholic Charities. which did not place children with same-sex couples. A prescient 2006 Weekly Standard piece by marriage traditionalist Maggie Gallagher explored the broader implications for religious agencies and colleges in free speech, freedom of association, employment law and tax exemption.

The Becket Fund, which represents the Fulton plaintiffs, produced this useful 2008 anthology covering all sides on these issues.

On October 5, the legal jousting heated up when Justice Clarence Thomas, joined by Justice Samuel Alito, issued a protest found within this memo (.pdf here).They dissented on Obergefell, but their chief concern now is that the court's ambiguity "continues to have ruinous consequences for religious liberty" that only SCOTUS itself can and must now remedy. A two-line Slate.com. headline typified reactions of the cultural Left:

Two Supreme Court Justices Just Put Marriage Equality on the Chopping Block

LGBT rights were already in jeopardy. If Amy Coney Barrett gets confirmed, they're likely doomed


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Podcast: Will preachers fighting 'shelter in place' rules create a church-state disaster?

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For several weeks now, churchgoers — and journalists — have been waiting to see what would happen at Easter, Passover and Ramadan.wisely,

We don’t have all the answers, yet. But it’s clear that in the overwhelming majority of cases, Christians in North America and around the world will be observing Holy Week and Easter at home, watching small teams of clergy and musicians celebrate the holiest rites of the Christian year while striving to follow the fine details of “shelter in place” orders.

In my own church — Eastern Orthodoxy — we will celebrate Pascha a week after Western Easter. Clergy in the Diocese of the South (Orthodox Church in America) just learned that our Archbishop Alexander has (I believe) set strict standards (.pdf here) for his parishes all across the Sunbelt. People will stay home through it all — Holy Week and Pascha — watching five-person teams of clergy and chanters do as many of the long, ancient rites as they can. Click here for Rod Dreher’s poignant post on that, which includes:

Did you know that the Church of the Holy Sepulcher in Jerusalem, the one built over the site where Jesus died, was buried, and was resurrected, has been closed for the first time since … the Black Plague, in the 14th century? The right way to see this is that we Orthodox Christians are being asked to make an absolutely extraordinary sacrifice for the life of the world — so that this plague which has killed, and will kill, so many, and will have reduced so many to poverty, can be defeated. As the old-school Catholics like to say about sacrifice, we should, “offer it up” as an extreme sharing of Christ’s passion. We will know in a way we never have the meaning of the crucified Jesus’s words, “My God, my God, why have you forsaken me?”

All of that loomed in the background as “Crossroads” host Todd Wilken and I recorded this week’s podcast (click here to tune that in).

For the most part, we tried to look past that story and down the road at the long-term legal implications of other religion-beat headlines caused by the coronavirus crisis.

I am referring to the small number of evangelical Protestants who have been rebelling against government orders to “shelter in place.” Julia Duin and I wrote about the coverage of some of these cases here (“About Rodney Howard-Browne and what happens to Easter, Passover and the hajj during a plague“) and then here (“All megachurches are not alike: NYTimes noted Howard-Browne arrest, but didn't leave it at that“).

What happens if — as some are planning — clashes between a few churches and state officials end up in court?


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