Supreme Court rules in favor of Catholic foster agency

[Dan Fienen]

That's OK, Sterling. You pointed out Justice Barret's concurrence, I focused on Justice Alito's

(By the by, is it still acceptable to use the colloquial OK to signify acceptability since the usual hand gesture for that has been revealed to be a hateful and obvious racial dog whistle?)

[Brian Stoffregen]

Going back to the 1960s, the Supreme Court ruled in Sherbert v. Verner, 374 U.S. 398 (1963) that the free exercise clause of the First Amendment meant that the government needed to demonstrate both a compelling interest and that the law in question was narrowly tailored before enforcing a law that burdened a persons free exercise of religion. This established what came to be know as the Sherbert test to be applied in First Amendment cases, it also came to be called strict scrutiny.
This interpretation was challenged and substantially limited in Employment Division, Department of Human Resources of Oregon v. Smith, 494 U.S. 872 (1990). Alfred Leo Smith and Galen Black were members of the Native American Church and fired from their counseling jobs at a private drug rehabilitation clinic being arrested for using peyote, a controlled substance under Oregon Law. They were later denied unemployment compensation which became the immediate dispute in this case. The denial of their unemployment claim was upheld by the Supreme Court, and the application of the Sherbert Test limited since the drug laws under which were laws of general applicability and not specifically aimed at the Native American Church.

The ruling stated:

It is a permissible reading of the [free exercise clause]...to say that if prohibiting the exercise of religion is not the object of the [law] but merely the incidental effect of a generally applicable and otherwise valid provision, the First Amendment has not been offended.... To make an individual's obligation to obey such a law contingent upon the law's coincidence with his religious beliefs, except where the State's interest is "compelling"–permitting him, by virtue of his beliefs, "to become a law unto himself,"–contradicts both constitutional tradition and common sense. To adopt a true "compelling interest" requirement for laws that affect religious practice would lead towards anarchy.

In response to this case and several similar cases, Democratic Representative from New York Chuck Schumer (who subsequently ran for the Senate from New York where he serves to this day) and Senator from  Massachusetts Ted Kennedy, who has since died, introduced into both houses of Congress the Religious Freedom Restoration Act of 1993, Pub. L. No. 103-141, 107 Stat. 1488 (November 16, 1993), codified at 42 U.S.C. § 2000bb through 42 U.S.C. § 2000bb-4. The Act passed unanimously in the House, nearly unanimously in the Senate, and was signed into law by then President Bill Clinton. The Act reinstates the Sherbert Test, slightly modified, with respect to federal law. The Act stated that the "Government shall not substantially burden a person's exercise of religion even if the burden results from a rule of general applicability."

Federal actions that are found to substantially burden free exercise are subject to strict scrutiny. A law may still substantially burden someone’s free exercise if the burden is necessary for the "furtherance of a compelling government interest" and the rule must be the least restrictive way in which to further the government interest. Under strict scrutiny, a government interest is compelling when it is more than routine and does more than simply improve government efficiency.

These issues have been revisited since then, both judicially and legislatively. Most notably in the 2019 Equality Act, Fulton v. Philadelphia, and Mast v. Fillmore County

As I recall, some Christian groups sided with the Natives in the Peyote case, because if they could be denied their religious use of peyote because it was an illegal drug; the government could deny the use of alcohol (wine) with minors for communion since laws prohibited serving alcohol to minors.

[Dan Fienen]

Personally, I would have sided with the Native Americans in those cases, perhaps partly because the same principles used against them, but I like to think more because freedom of religion if it means anything it means freedom for all religion, not just mine or those I agree with.


Your example of possible governmental prohibition of sacramental wine to minors is an interesting one. Justice Alito in his concurrence in the Fulton v. Philadelphia decision points out how under the reasoning of Smith the Volstead Act could have been used to prohibit the Roman Catholic Mass throughout the United States if sacramental use of wine had not been specifically exempted from the provisions of the Act.


As it happens, Smith was used as precedent to justify the actions of the City of Philadelphia against CSS. The Smith decision itself caused much outcry in support of Native American religious rights. Thus, the RFRA was sponsored by liberal Democrats and passed almost unanimously. Perhaps those who supported it never imagined that it would be used by Christians and not just Native Americans.

[JEdwards]

The real fix is to repeal Employment Division v. Smith, which despite his otherwise impressive record as a justice, was the worst decision Justice Scalia ever penned, and one that I'd wager he regretted toward the end of his life and tenure.

Sometime in the late '90s, I had the opportunity to ask Scalia a question about this after hearing him speak at a local university.  His view (at the time, at least) was that the free exercise clause prohibited only laws that were clearly targeted at religious practice, but he expressed the view that Americans are a very tolerant people, and that conflicts between religious conviction and public policy can and should be fairly resolved by the legislative process and/or negotiation.  He felt that the passage of the RFRA illustrated that fact.  I think it is likely that his optimistic assessment of Americans' tolerance for dissent might be different now.

Peace,
Jon

[MaddogLutheran]

The real fix is to repeal Employment Division v. Smith, which despite his otherwise impressive record as a justice, was the worst decision Justice Scalia ever penned, and one that I'd wager he regretted toward the end of his life and tenure.

Sometime in the late '90s, I had the opportunity to ask Scalia a question about this after hearing him speak at a local university.  His view (at the time, at least) was that the free exercise clause prohibited only laws that were clearly targeted at religious practice, but he expressed the view that Americans are a very tolerant people, and that conflicts between religious conviction and public policy can and should be fairly resolved by the legislative process and/or negotiation.  He felt that the passage of the RFRA illustrated that fact.  I think it is likely that his optimistic assessment of Americans' tolerance for dissent might be different now.

Peace,
Jon

Thanks for sharing this, I am very envious of this encounter.  It supports my speculation above, that Scalia hoped that good will by all parties would allow this to be sorted out in the democratic process, not in courtrooms.  Obviously the reality has been otherwise, given the scorched earth mindsight of zero tolerance for intolerance.

Really disappointing, given how there are plenty of exceptions in prior/existing law for religious minorities (the Amish previously referenced being a prime example) in deference to the First Amendment.  Unfortunately the zeal of the equality crusaders are ignorant of such things.  Such an accommodation would have prevented this Philadelphia court case.  It seems likely the city will do the opposite of what Scalia would have hoped in Smith, grabbing the loophole in Fulton to remove ALL exemptions so that discretion can't be challenged as arbitrary and therefore discriminatory towards religion, and allowing it to continue excluding the Catholic agency from the system.  Because the one thing that cannot be tolerated is intolerance, in others.