Jeffrey Trachtman

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

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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