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Philadelphia Foster Care Case Challenges Justice Scalia’s Most Controversial Opinion
The Federalist ^ | November 13, 2020 | Elizabeth Slattery and Anastasia Boden

Posted on 11/13/2020 9:10:48 AM PST by Kaslin

Fulton is part of a broader effort to hold the government to a higher standard whenever it limits our freedom—from our ability to speak, work, exercise religion, or simply live as we choose.

On Nov. 4, the Supreme Court heard oral argument in Fulton v. City of Philadelphia, a challenge to the city’s exclusion of Catholic Social Services from participation in the foster care system due to its views on same-sex behavior. This may sound like a run-of-the-mill battle in the culture war, but there’s a lot more to it.

Fulton is part of a broader effort to hold the government to a higher standard whenever it limits our freedom—from our ability to speak, work, exercise religion, or simply order our lives how we want. A controversial 30-year-old ruling written by Justice Antonin Scalia, Employment Division v. Smith, stands in the way, and Fulton asks the Supreme Court to overturn it.

What Scalia’s Smith Decision Was All About

In Smith, the Supreme Court considered a free-exercise challenge to state’s denial of unemployment benefits to two Native American drug counselors who were fired for participating in religious peyote ceremonies. The drug counselors believed they were entitled to an exemption from the state’s law prohibiting the use of mind-altering drugs based on their religious beliefs. The case reached the Supreme Court at the height of the War on Drugs, and to quote First Lady Nancy Reagan, five justices were ready to “Just Say No.”

Under the Supreme Court’s free exercise jurisprudence of the 1970s and 1980s, it evaluated whether a law that burdened the exercise of religion was justified by a compelling interest that couldn’t be served by less restrictive means. This is known as strict scrutiny. Yet free exercise plaintiffs more often than not lose at the Supreme Court under this standard, leading to the aphorism that it was “strict in theory, feeble in fact.”

Writing for the majority in Smith, Scalia departed from this well-worn standard, holding that a person’s religious beliefs do not excuse him from complying with reasonable generally applicable laws. Scalia explained that it would be better for individuals to seek religious accommodation from legislatures rather than asking judges to second-guess the legislature and fashion such relief.

Justice Sandra Day O’Connor wrote a concurring opinion supplying a sixth vote to Scalia’s majority. She wrote separately to explain her agreement with the outcome (that the drug counselors should lose) but said the court should have applied the old standard to reach that decision.

In her view, earlier cases had all involved generally applicable laws, and she declared that if the free exercise clause “is to have any vitality,” it cannot cover only laws that directly target religious practice. After all, the First Amendment “does not distinguish between laws that are generally applicable and laws that target particular religious practices,” and “few States would be so naive as to enact a law directly prohibiting or burdening a religious practice as such.”

Justice Harry Blackmun, who is best known as the author of Roe v. Wade, wrote a scathing dissent accusing Scalia of throwing out decades of “painstakingly” developed free exercise jurisprudence. “One hopes,” he said, “that the Court is aware of the consequences, and that its result is not a product of overreaction to the serious problems the country’s drug crisis has generated.” For Blackmun, the strict scrutiny standard was “settled and inviolate.”

Bipartisan Opposition to Scalia’s Standard

The response to Scalia’s opinion was swift and overwhelmingly negative—so much so that it led a bipartisan Congress to enshrine the old strict scrutiny standard in federal law just three years later. At the signing ceremony, President Bill Clinton announced that the Religious Freedom Restoration Act, known as RFRA, would “reestablish[ ] a standard that better protects all Americans of faith in the exercise of their religion.”

RFRA bars the government from substantially burdening the exercise of religion unless that burden advances a compelling government interest in the least restrictive way possible. In many ways, religious Americans are better off under RFRA than they were under the old watered-down strict scrutiny standard.

Judges are more inclined to hold the government to RFRA’s demanding standard. For example, in Gonzales v. O Centro Espirita, the Supreme Court unanimously ruled for a religious group that argued its members had the right to use hoasca, a Schedule I hallucinogenic drug—exactly the opposite of the outcome in Smith.

But RFRA isn’t perfect. It only applies to the federal government, and while 21 states have adopted their own versions, not all are as robust as the federal standard, either as written or as interpreted by courts. It’s also a statute rather than a constitutional provision, meaning it could be revised or repealed if the political winds change (and they certainly have changed since 1993).

How Smith Is Hurting Foster Children in Philadelphia

Smith also still comes into play in religious liberty cases, as evident from the Fulton case.

The City of Philadelphia canceled Catholic Social Services’ contract to place kids in foster homes after learning the agency operates in accordance with the Catholic Church’s teachings and would not place kids with same-sex couples. (A same-sex couple had never approached Catholic Social Services, so the dispute is actually entirely hypothetical.)

The Catholic agency sued, arguing this violated its free exercise of religion under the Constitution as well as Pennsylvania’s RFRA. The lower court held that the Catholic agency was not entitled to an exemption from the city’s neutral, generally applicable non-discrimination policy and that it had failed to show the city singled it out for disfavored treatment based on religion.

At the Supreme Court, Catholic Social Services and a few foster parents implored the justices to throw out Smith and replace it with a strict scrutiny standard that a growing consensus maintains is more consistent with the original meaning of the Constitution. Several justices have expressed concerns about Smith. Justice Samuel Alito, joined by Justice Clarence Thomas, Neil Gorsuch, and Brett Kavanaugh, said Smith “drastically cut back on the protection provided by the Free Exercise Clause” in a statement when the court declined to take up a case brought by a football coach who was fired for praying at the 50-yard line after games.

Last month, Thomas cited Smith when he issued a statement respecting the court’s denial of an appeal from a county clerk who refused to issue marriage licenses to same-sex couples in the wake of Obergefell v. Hodges. In 1997, Justice Stephen Breyer dissented from City of Boerne v. Flores, which held that Congress exceeded its authority by extending RFRA to state and local governments.

Breyer said the Supreme Court should have considered whether Smith was correctly decided. That’s not typically the sort of thing you’d say about a ruling you agree with, right?

Naturally, all eyes will be on the newest justice, Amy Coney Barrett, to see if she’s persuaded by the view of her former boss, Justice Scalia, or the argument that Smith cannot be justified under an originalist view of the Constitution. Time will tell whether the Supreme Court will put in place a more demanding, constitutional standard when the government restricts our freedom.

TOPICS: Culture/Society; Editorial; Government
KEYWORDS: adoption; antoninscalia; fostercare; homosexualjudiciary; judiciary; politicaljudiciary; religiousliberty; supremecourt

1 posted on 11/13/2020 9:10:48 AM PST by Kaslin
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To: Kaslin

Scalia was not a god, no matter how often he was right.

And, yes, I think it is one time (there may have been others) when Scalia hypocritically did what he said the Liberal activist judges were always wrongly doing - sticking a legal finger in the air to see which way the political winds were blowing.

The “Native American” religious practices were not part of nor contributing to the epidemic of illegal drugs at the time. The practices using peyote were far older than the “war on drugs” and had never been viewed in their own right as contributing to any spike in the use of illegal drugs, except in a minor fashion with some early sixties “hippie” interest which faded.

Now it is Catholic charities paying the price for the mixing of “constitutional” law with the legislative war on drugs.

2 posted on 11/13/2020 9:26:23 AM PST by Wuli
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To: Wuli
I don't know all the details of this particular case, but based on what I've seen in other similar cases I would say Catholic Social Services has a tough legal hurdle to climb here.

Heck -- I'm not even sure they'd convince ME to vote on their side if I was a U.S. Supreme Court justice right now.

It would seem to me that the Smith case has no bearing here because that was predicated on the legal rights of individuals. This Philadelphia case seems to be an entirely different one because the city isn't necessarily denying the religious liberties of Catholic Social Services and its members. It's simply insisting on contractual terms with the City of Philadelphia that Catholic Social Services does not want to abide by.

The mere fact that CSS signed a contract with the City of Philadelphia -- and was presumably PAID for the organization's services -- is strong evidence that this is not a "religious freedom" case at all.

Catholic Social Services should simply sever all ties with the City of Philadelphia and facilitate its own adoptions and foster care arrangements however the hell it pleases.

You don't "render unto Caesar" by signing a contract with him ... and then demand that he "render unto God" when you don't like his terms. You never should have rendered this unto Caesar in the first place.

This is why you never see Amish plaintiffs in these landmark Supreme Court cases involving religious/cultural issues. Those people know damn well that the government is never to be trusted to uphold and protect their religious and moral principles.

3 posted on 11/13/2020 9:39:58 AM PST by Alberta's Child ("There's somebody new and he sure ain't no rodeo man.")
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To: Kaslin

“Naturally, all eyes will be on the newest justice, Amy Coney Barrett, to see if she’s persuaded by the view of her former boss, Justice Scalia, or the argument that Smith cannot be justified under an originalist view of the Constitution.”

ACB could take the originalist view and still agree with Scalia, because he only thought that lawmakers, not judges should the case in question.

4 posted on 11/13/2020 9:42:33 AM PST by Beagle8U ("Chris Wallace comes from the shallow end of the press pool.")
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To: Kaslin

Scalia was NOT the great conservative justice that most “conservatives” say he was. Scalia threw the constitution, conservatism and the country under the bus in his religious zeal against intoxicating drugs. Scalia was a leftist big government bureaucracy FDR New-Dealer, not because that was his philosophy but because he had to give those people everything they wanted in order to maintain the legal underpinning of his fanatical war on drugs without a constitutional drug prohibition amendment authorizing the federal government to carry out such a war. The fully FDR-filled Supreme Court opinion Wickard v Filburn (1942) is what authorizes the war on drugs and it also authorizes every other federal bureaucracy and regulation by ignoring the text of the constitution concerning regulation of interstate commerce, intended only to prevent unfair competition among states, and extending it to mean that the federal government could regulate anything “affecting” interstate commerce, which then meant all commerce. That lets the feds ban lawn darts or home-grown pot because it **might** cross state lines. Before the 18th Amendment banning alcohol, the Supreme Court had refused to give the feds unlimited commerce power. After Prohibition, the FDR government did not want to bother with changing the constitution to get what it wanted, so it changed the court and every government since has liked it that way.

Today, there is only 1, *ONE*, actual original textualist on SCOTUS, Clarence Thomas. All the rest, ACB almost certainly included, are nanny state big government anti-origianalist FDR New Deal leftist, or total sellouts to them in order to protect their little piece of “conservative” nannyism.

5 posted on 11/13/2020 9:53:56 AM PST by UnbelievingScumOnTheOtherSide (Reverse Wickard v Filburn (1942) - and - ISLAM DELENDA EST)
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To: Alberta's Child; Wuli; Beagle8U

See #5

6 posted on 11/13/2020 9:58:40 AM PST by UnbelievingScumOnTheOtherSide (Reverse Wickard v Filburn (1942) - and - ISLAM DELENDA EST)
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To: Kaslin
"... 'few States would be so naive as to enact a law directly prohibiting or burdening a religious practice as such.' ..."

If only that observation were still true today. Heck, Governors across the country are doing so on a regular basis without regard for the 1st Amendment.

7 posted on 11/13/2020 10:47:13 AM PST by alancarp
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To: BillyBoy; AuH2ORepublican; justiceseeker93

Ping, interesting, I never heard of the “Smith” decision.

8 posted on 11/14/2020 6:40:22 PM PST by Impy (George Washington did not concede to King George)
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