Conservatives would have us believe there is an unresolved conflict in our laws between two legitimate but competing interests. On one side are the overwhelming majority of Americans who think discrimination and bigotry should not be supported by the secular government. On the other side are the vocal minority of Americans who believe that state-sponsored discrimination and bigotry is required by God. Conservatives are pretty sure discrimination and bigotry should win the day always, but they’re deeply divided about how to get there legally.
That question—that disagreement over which seal of the theocratic apocalypse should be opened next—was the entire point of last week’s Supreme Court decision in Fulton v. City of Philadelphia. Technically, the decision was “unanimous”—but the court was as fractured in this case as a pane of glass that has cracked but not yet broken.
At issue was whether a religious organization can discriminate against LGBTQ couples seeking to provide foster homes for children. The City of Philadelphia uses a number of outside agencies to screen potential foster care parents. One of those groups is Catholic Social Services (CSS). That group decided it would no longer screen or recommend gay couples as potential foster parents, because of its religious objection to anyone’s being in love in a way it doesn’t like. Philadelphia, in turn, decided to stop using CSS to screen foster parents, as the organization’s bigotry toward gay couples was in conflict with the city’s commitment to antidiscrimination.
Under this arrangement, CSS was free to go about its work of discriminating against LGBTQ people if it liked; it just couldn’t do that work while also being an official government partner. I’d question why a city, any city, would allow any religious group to participate in picking families to care for foster kids. But don’t mind me; I’m just a guy who thinks religious institutions should not be entrusted with any governmental responsibilities.
Unfortunately, those in charge of CSS were not satisfied with merely practicing their religion freely; instead, they demanded that the organization be allowed to retain its role in the state-run foster care system. CSS sued the City, arguing that the denial of its right to discriminate on behalf of Philadelphia impinged on its free exercise of religion as guaranteed in the Constitution.
To be clear, CSS was always going to “win” this argument in front of the Supreme Court, because there are six conservatives on the court who believe that freedom of bigotry is a right, enshrined in the Constitution, that trumps all other rights (except the right to kill people with guns, of course).
But “how” the conservatives were going to make CSS win was a totally open question, because there is a fairly big Supreme Court precedent that says CSS should lose. In fact, CSS wasn’t just trying to win; it was trying to overturn the precedent that limits the ability of religious organizations to flout secular laws. That case is called Employment Division v. Smith, and it was written in 1990 by none other than conservative hero troll Antonin Scalia. Smith says that generally applicable secular laws do not automatically trigger a claim under the First Amendment’s free exercise of religion clause. Applying that logic to Fulton, a rule saying that “foster care agencies cannot discriminate against same-sex couples” is pretty obviously “generally applicable,” meaning CSS should have no right to complain.
It’s important to remember that, historically speaking, conservatives have been hostile to free-exercise claims. That’s because our secular laws are written to favor Christian faiths. Often, free-exercise clause claims have been brought by people practicing minority religions, ones whose “kooky” beliefs run afoul of the prevailing Christian rules. In Smith, for instance, the plaintiffs were two members of the Native American Church who were fired from their jobs for ingesting peyote in accordance with their religious beliefs. They were then denied unemployment benefits by the government because of this “misconduct,” after which they sued, arguing that the denial of benefits impinged on their free exercise of their religion. Of course, the very conservative and Catholic Scalia denied them relief and crafted a rule designed to deny many other non-Christians relief when their ways conflicted with “secular” laws in our overwhelmingly Christian-themed society.
But Smith was decided in 1990, and society has changed in the past 30 years. Now, secular laws do not automatically favor Christian beliefs (in some places, at least). Smith no longer serves its essential purpose of protecting Christian dominance; now, it can sometimes prevent Christians from getting the state to support their intolerance.
So some conservatives want to do away with Smith. Three of those people are on the Supreme Court. In a 77-page opinion in Fulton, Samuel Alito (joined by Clarence Thomas and Neil Gorsuch) argued that the best way to make Catholic Social Services win was to overturn Smith. Alito’s view is that religious beliefs (Christian religious beliefs, at least) should always have the opportunity to trump secular law, no matter how basic and general that secular law is. If a Christian tells us that a toxic bush ordered him to paint the N-word on all the Black-owned businesses in town, Alito would have us slow down and consider whether vandalism laws sufficiently consider religious objections.
But Alito’s opus is only a concurring opinion in Fulton, because he couldn’t get five votes to support it. Instead, Amy Coney Barrett wrote separately and was joined by alleged attempted rapist Brett Kavanaugh. Stephen Breyer also joined her opinion in part. Barrett’s concurrence is short and surprisingly practical given that her ultimate goal, like Alito’s, is to make the world safe for people who use God as an excuse to discriminate. She seems to agree that Smith should be overturned (that’s the part Breyer did not join), but she’s concerned about what would replace it. She doesn’t like Smith’s “categorical” protection of secular law, but also doesn’t go for Alito’s categorial victory of free exercise over all else.
Her point is a smart one, if you are conservative. After all, if free exercise always wins, eventually Muslims or the Nation of Islam will ask for some rights and protections against state laws, and most conservatives don’t want that at all. Barrett wants a more nuanced rule that has yet to be found.
And then there’s Chief Justice John Roberts. Roberts’s technically unanimous opinion solves the problem of making CSS win without overturning Smith by simply making some stuff up. Remember, Smith applies only to “generally applicable” laws, so Roberts invents a world in which the Philadelphia foster care procedures are not “generally applicable.” Roberts does this by arguing that Philadelphia grants its commissioner of human services the authority to make individual exceptions to its nondiscrimination policies for foster care agencies and says that the fact of those potential exceptions means the case doesn’t fall under Smith. Thus, Roberts rules that CSS should have been granted an exception.
Roberts ignores the fact that those exceptions are entirely theoretical; they are supposed to apply to foster care placement, not screening of families, and Philadelphia’s commissioner of human services hasn’t actually used his authority to grant any exceptions. Roberts is literally using exceptions that haven’t been granted at the end of the foster care process to force Philadelphia to make an exception at the beginning of the process. It doesn’t make any sense. Gorsuch spends most of his concurrence making fun of Roberts, and he’s right to do so because Roberts’s logic is gobbledegook designed to get his preferred discriminatory outcome in this case while fully dodging the larger issue.
The astute reader will note that I haven’t really mentioned the three liberals—Breyer, Sonia Sotomayor, and Elena Kagan—who all also signed onto Roberts’s opinion to make this a unanimous decision in support of CSS’s right to discriminate against gay people. None of them even wrote separately to say “this is wrong” or “please stop hurting us” or even a simple “I’m sorry.”
That’s because conservatives are largely arguing among themselves about when discrimination is OK under the guise of religious liberty, while the reasonable secular position of “it’s not” is no longer even on the table. The liberals on the court are trying to pick and choose between the bad options conservatives leave for them, like a vegetarian at a steak house picking at the garnish.
We don’t know what backroom vote trading deals went on behind the scenes in this case, but there is a lot of circumstantial evidence that votes were switched as this case and others were deliberated. It’s not normal for a justice to write a 77-page concurrence, and while Alito is generally a salty, antisocial justice, it sure sounds like he thought he was writing a majority opinion, until suddenly he wasn’t. The liberals likely had a choice: join Roberts in his ridiculous opinion denying LGBTQ rights in this one case, or risk Barrett and Kavanaugh joining Alito’s extremist attempt to deny LGBTQ rights in many more cases in the future.
The Roberts opinion is awful—but limited. Conservatives will have to mount an entirely new challenge to overturn Smith in the future. Maybe by that time Democrats will expand the court or Barrett will find her nuance or somebody will choke on a ham sandwich. I bet voting this way turned Sotomayor’s stomach. I bet there is an epic dissent on her hard drive that she was going to print on toilet paper and throw at Alito’s house. Indeed, I find the lack of a liberal concurrence to be a very clear “bite me” from the liberal justices; it’s their way of saying, “I’m not even going to dignify this tripe with an answer.” But, strategically, letting Roberts have this one and hoping for something to change the terms of the debate in the future was probably the right call.
It’s hard to see that brighter future, though. Conservatives disagree about how to get there, but they’ve accepted the premise that state and local governments should be required to accept and tacitly endorse bigotry in the delivery of public services if religious organizations claim such bigotry is commanded by their faith. Whether Roberts does it with a thousand cuts or Alito is allowed to set off a bomb is a matter of tactics, not principle. This is what the conservatives want, and they have enough votes to keep trying to do it, one way or another.
The only way to protect the LGBTQ community from these people is to diminish the power of conservatives on the court. Unlike the liberals on the court, the Democrats in Congress seem unwilling to make the hard choice and do what is necessary to survive.