As noted in the previous article in this series, the unanimous but narrow Supreme Court decision in favor of Catholic Social Services of Philadelphia followed the pattern of the earlier 7-2 decision in the Masterpiece Cakeshop decision, finding for religious freedom, but not giving a general rule about complicity in religiously objectionable behavior that will resolve the conflict. Especially noteworthy was Justice Samuel Alito’s 72 page concurrence, in which he chastised the court for not overruling the Employment Division vs. Smith decision (1990). That decision holds that there is no general right of religious freedom against the law of the state, only freedom from discrimination against particular religious belief and practice. Religious foster care services were singled out to determine whether they would place children with same-sex couples, so the City of Philadelphia clearly violated the First Amendment even under Smith decision jurisprudence. But as Alito and newly appointed justice Amy Coney Barrett pointed out, the clear meaning of “free exercise of religion” is general protection for religious belief and practice, and thirty years of intense scholarship since 1990 have shown that this was the intent of the founders.
An alternative decision against religious freedom would have been momentous and devastating. The decision that was handed down was very narrow, arising from the fact that the City of Philadelphia did not give CSS the option of an exemption from its sexual orientation and gender identity (SOGI) requirement, even though the law was constructed in such a way that it could have done so. The court’s decision did not restore the older standard of religious liberty that prevailed before the Smith decision. Probably the most important thing about the decision is that, like the Masterpiece Cakeshop decision, it signals the attitude of the court, that the LGBT attack on religious freedom has gone too far. In this respect these decisions, Masterpiece Cakeshop and this year’s Fulton vs. the City of Philadelphia decisions, are somewhat like the Romer vs. Evans decision (1996), which inaugurated the LGBT war against religious freedom as a matter of constitutional law. That decision signaled the attitude of the court against statutory opposition to homosexuality. At least the more moderate justices who supported the decision possibly did not understand that claims of oppression would lead to tyranny. But that is always what happens with radical ideology, which attacks human nature and natural law. It happened with communism, and it has happened in the West with the sexual revolution.
Failure to understand the gravity of denying religious freedom still seems to be an issue with commentators detached from commitments to hard, non-negotiable religious belief. They either do not understand or do not accept that there are absolute religious commitments that cannot be violated even when the law of the state requires it. (Although centuries of martyrology clearly show that people have such commitments).
From a perspective critical of the administrative state, the New Civil Liberties Alliance maintains that the Supreme Court was right in finding for Sharonell Fulton and Catholic Social Services. The City of Philadelphia’s action violated the First Amendment even under the Smith standard of targeting religious belief and practice. Its action was made by an administrative process, not a legislative one under review by voters, including religious voters. NCLA observes that administrative processes tend toward “rationalism and scientism,” and are indifferent or hostile to “orthodox or traditional” religion. Further, administrators are likely to have a high level of secular education, and thereby tend to be more hostile to traditional religious views than a legislator would. Religious and social conservatives may appreciate NCLA’s recognition of liberal/left bias. But is not the granting of an exemption to law at the discretion of state authorities? They are empowered to make decisions that they are legally empowered to make. NCLA apparently favored a decision based on a kind of reasoning similar to the Romer decision, which held that the hostility of Colorado voters toward homosexuality made Colorado’s prohibition of local homosexual rights ordinances unconstitutional. But animosity, even intense animosity, is an ordinary part of the political process.
NCLA supports the Smith decision, maintaining that text and history of First Amendment support it, but does not clearly explain why laws must directly prohibit a particular religious belief or practice, rather than merely having that effect. The First Amendment, after all, says “free exercise of religion,” not “equal protection of religion.” Why, for instance, to be in violation of the Constitution, would a law have to prohibit the use of wine in a Roman Catholic mass, rather than all simply prohibiting all alcoholic beverages anywhere, which has the same effect? Justice Alito’s concurrence in the Fulton decision (p. 25 of his concurrence) explains why the free exercise of religion is a general right no different from other parts of the Bill of Rights. Similarly, James Madison’s clear statement of citizens’ allegiance to God above that to the state, noted in earlier articles from the Memorial and Remonstrance, shows that the First Amendment protects religious practice whether it is targeted or not. In the end NCLA apparently does not understand that religious precepts ought to be given utmost respect. This is because religion is a claimed apprehension of ultimate reality, and thus ultimate righteousness. And in the case of antidiscrimination law, it is believers and religious organizations who are required to act against those precepts, which is manifestly wrong.
NCLA notes that the Smith decision substitutes religious equality for religious exemption. As was noted in an earlier article, the Christian Legal Society, Lutheran Church—Missouri Synod, Anglican Church in North America and other religious traditionalist organizations held in their brief that this is exactly the problem. As the brief put it, what was previously understood as a substantive right (to practice one’s religion), now became an equality right (to be treated no worse than practitioners of other religions). But, as the brief makes clear, religious freedom is obviously a substantive right from the very term “free exercise.” Religious exercise is “free” only if it prevails against other general requirements of the law, as other rights in the Bill of Rights do, not merely if specific religious belief and/or practice is prohibited.
Legal commentator and UCLA law professor Eugene Volokh offered one of the few briefs on the Fulton case that did not support either side. He maintained that the Smith decision should not be overruled, because a legal regime like that resulting from the Sherbert vs. Verner decision (1963) amounts to substantive due process for religious issues. Substantive due process in general based on the Fourteenth Amendment fell into disrepute because it imposes a general, and ever arguable requirement of “fairness” on law. Nevertheless, with religious doctrine one is at least dealing with religious texts, not a judge’s own assessment of what is fair. Volokh also maintained that statutory laws like the Religious Freedom Restoration Act are preferable to a general religious exemption in the First Amendment because they can be repealed or modified by legislatures, which Volokh considers a virtue. But protecting our duty to God as we understand his commands to be is surely the objective of the First Amendment, and defeated if legislatures can override it.
In a related article the day after oral arguments Volokh reviewed events in the Fulton oral arguments that happened the previous day. While he was neutral about who should win, his analysis did not seem to hold a high regard for religious freedom, at least in this case. He focused on the Fulton oral arguments with respect to 1) comparing same-sex marriage to interracial marriage (he appears to be tending toward the analogy the Left draws between LGBT and racial issues), 2) Justice Stephen Breyer’s efforts to find religious accommodation that doesn’t offend the wider public, 3) Justice Amy Coney Barrett’s concern about overruling the Smith decision and questioning of the “third-party harm” principle against religious freedom, and 4) Justice Samuel Alito’s claims about the City of Philadelphia’s animus against religious doctrine.
On the first of these, Volokh highlighted questions from Justices Breyer, Kagan, Sotomayor, and Barrett concerning what should be done about a religious claim for racial discrimination. In particular, Kagan’s focus on the objective of antidiscrimination law in overcoming stigma shows, this writer believes, the corner into which American law and jurisprudence has painted itself. The purpose of antidiscrimination law is indeed to remove stigma, but what happens if the law’s objective, which is a strongly moral claim, contradicts strong religious doctrine and precepts?
The justices, lawyers, and surely the American public in the main think that religious freedom should simply be set aside on racial issues. But as Kagan and two lawyers favoring the City of Philadelphia pointed out, once race is an exception to religious freedom in the interest of removing stigma, then in short order there is the question of why other protected categories are not exceptions to religious freedom as well. And beyond that, the proposed Do No Harm Act excludes religious freedom on any public policy objective important to the American Left.
But nothing in the First Amendment allows this. Surely a religiously neutral state must not allow action that causes material harm on a religious basis (e.g., human sacrifice). But to disallow religious exercise because someone finds it offensive (and what else is the “dignity” argument against religious freedom on LGBT issues?) makes it hardly any right at all, and certainly not the pre-eminent duty to God that James Madison acknowledged. This writer has argued that race is indeed different from other antidiscrimination categories in that race is a superficial characteristic, whereas sex, religion, disability, etc. are profound differences where discrimination could be reasonable, and therefore should be legal. It might be added that racial equality was the clear purpose of the Thirteenth, Fourteenth, and Fifteenth Amendments. Perhaps they could be cast as repealing the First Amendment on racial matters.
That they were intended to remove other inequalities is not at all clear. Indeed, the Nineteenth Amendment was thought necessary to give women the right to vote.
It seems to this writer that the conflict between religious freedom and antidiscrimination law cannot be resolved unless the courts permit themselves to judge the content, but not evaluate the virtue of religious doctrine. In that case they would find that there is no reasonable religious basis for racial discrimination relying on texts used by Christians, Jews, or Muslims, at least insofar as public accommodations are concerned. Perhaps Hindus might have a case for caste discrimination, but that is not something that would greatly affect American society. Alternatively, the court could expand the blanket legal rejection of religious freedom from race to all other categories. But this does fly in the face of the First Amendment, and the objective of religious freedom stated by Madison to recognize duty to God as our pre-eminent obligation.
The other issues in the oral arguments Volokh discussed – Breyer’s attempt to make religious accommodation inoffensive, Barrett’s question about “third party harm,” and Alito’s claim of antireligious animus on the part of the City of Philadelphia all flow from the practical attempts by the state to attack religious doctrine – in this case, the doctrine that homosexuality is sinful. The obvious solution is that religious exercise in the public square is protected by the First Amendment, however offensive anyone finds it
Legal scholars Alan Brownstein of UC Davis Law School, Melissa Rogers, formerly Director of the Center for Religion and Public Affairs at Wake Forest University Divinity School and currently Executive Director of the White House Office of Faith-Based and Neighborhood Partnerships, and Rabbi David Saperstein, formerly chief legal counsel of the Union of Reform Judaism and formerly Ambassador-at-Large for International Religious Freedom offered a brief in support of the City of Philadelphia. While this writer is hardly competent to evaluate their arguments, I believe the ordinary legal layman could recognize it perhaps the best brief against CSS. They do seem sensitive to religious obligations. But basically they say that CSS is a contractor, doing government work, and must abide by government requirements.
Volokh observed in his article following oral arguments that important in the case was whether CSS is a government contractor doing government work or a licensee doing its own work. Understandably this is so, but to the advocates of the SOGI revolution it would hardly matter – antidiscrimination against SOGI requirements should be part of government activities, and required in licenses for business and the professions, they would say. In either case (although certainly more so in the latter), the state is requiring citizens to act against their religious precepts; forcing them to choose between their duty to God and their duty to the state.
Against this the Brownstein brief said:
“it should be clear that the nondiscrimination requirements at issue in this case do not present CSS with an unconstitutional choice between religious exercise and the loss of a benefit to which it would otherwise be entitled.”
But there is a choice between God and government, if foster care is for Catholics a religious exercise (which it is), in pursuit of a religious duty (charity), and they are bound not to be complicit in sin, which they are, as noted in the previous article in this series (Catechism of the Catholic Church (para. 2357 on homosexuality, and para. 1868 on complicity)).
As noted in the previous article in this series, the brief from the United States Conference of Catholic Bishops (USCCB) appealed to the Catholic Church’s historic care for widows and orphans from antiquity, and its 200 year care for orphans in the City of Philadelphia, to say that the foster care work of Catholic Social Services remains a religious activity, although now performed for a fee and regulated by the state.
Justice Alito was surely correct that the case is the result of animus against the doctrine of the Catholic Church on marriage (and more generally, it should be said, on homosexuality). This writer believes that animus is not a good standard (if one can call it that) to consider as a constitutional issue. Articles last year (here, and here) reviewed Carl Trueman’s analysis of the triumph of the “psychological self,” which makes self-actualization today’s supreme value. From this standpoint, it is easy to see why “animus” has become such an important legal concept. But all political, and certainly cultural, conflict involves animus. Given that there was no actual case of discrimination against a same-sex couple, only a news report that CSS as a matter of policy will not provide children to same-sex couples, and the resulting political furor, it is manifestly the case that the city’s action was motivated by hostility (and virtue signaling) against Catholic doctrine.
It could indeed be argued that SOGI laws and policies in general are motivated by animus against religious doctrine, and are thus impermissible. Of course religious doctrine involves intense animus against homosexuality, but the source of the animus is held to be God. Religion is not a “guise” for hostility against homosexuality, but the source of much of the hostility, and as such, is constitutionally protected under any reasonable reading of “no establishment” and “free exercise.” Religious believers are careful to point out that there is no hostility toward persons, only their behavior. LGBT apologists and their legal allies strongly reject this, but personal behavior, especially for a self-defined identity, is simply not something that can consistently be protected.
The learned opinions cited in this article seem to understand that religious freedom is important, but they seem to have lost sight of it as our first and most important freedom. It is the first freedom because it is the freedom that addresses ultimate reality, and thus ultimate commitments. As James Madison understood, our duty to God is superior to our duty to the state, but the state cannot profess to know about God’s requirements. Understanding these can only be left to individual citizens, the religious texts they cite, and their consciences. And that calls for vindicating CSS’ placement of children according to its religious precepts, and more generally overturning the Smith decision’s denial of their primacy.
No comments yet
Leave a Reply