In deciding Fulton the Supreme Court sidestepped both the question of whether to overrule Smith and how far accommodation of religious beliefs in conflict with anti-discrimination policies may go. In summary, the Supreme Court found that the Philadelphia policies and laws were not of general application, because they provided for exceptions, and so the requirements of Smith had not been met and the case could be decided without addressing the standing of Smith. Catholic Social Services won, at least for the moment. The litigation is likely to continue in another form, as one response Philadelphia may make is to amend the relevant statutes and policies to eliminate exceptions, thereby curing the lack of general applicabiity of the laws. That route would result in another suit and the Supreme Court facing directly whether to preserve or overrule Smith. A reason not to go that route is that there are already three Justices prepared to overrule Smith, and another 2 or more thinking about overruling Smith. My impression is that, when the question comes to the Supreme Court, Smith will be overruled. Philadelphia then ought to take the loss and let others litigate the status of Smith. The result in Fulton surprised me. I thought that the Court would both address Smith and either find for, or suggest a method of analysis favorable to, Catholic Social Services. That did not happen, obviously, but there is writing on the wall.
The ACA decision (California v. Texas) took up most of the commentary on the decisions handed down Monday. That seemed to me an easier case, indeed, one that would not have made it to the Supreme Court had the lower courts not be so ideological. The technical nature of Fulton also helped lower its profile, but the problems the case presented are not going away. The conflict between religious belief and anti-discrimination laws and regulations is not solved. The apparent commitments of a majority of the Supreme Court look to me to invite further litigation, that is, the Court will overrule Smith and will try to work out means by which there will be greater accommodation of religious views as exempted, to a limited but real degree, from anti-discrimination law. Stay with CSS as an example. It is not a simple anti-gay bias that is at work. CSS serves unmarried gay men and lesbians along with their heterosexual counterparts. (So the Supreme Court says anyway.). CSS draws a line only between married same-sex and married different-sex couples. Married couples is the locus of conflict here. CSS has religious commitments concerning the nature of marriage that entail that preclude treating same-sex marriages as equal with different-sex marriages. But as it willing serves unmarried persons of various sexual orientations, it is not really true that it is excluding or denigrating gay men or lesbians. If the analysis of Bostock gets applied that fact may not matter because denial of service to same-sex married couples would seem to be in virtue of sexual orientation of the married couple. But Bostock does not yield a clean answer because it is, after all, just within the set of married couples that different treatment arises. I.e., it is not solely sexual orientation that matters, as was the case in Bostock.
For many, any exemption would be anathema, i.e., any exemption will denigrate gay and lesbian married couples, and so gay and lesbian persons. They would be an affront to their identities. And the absence of any exemption denigrates the adherents to the Church. CSS is not a business; it is part of the religious practice and mission of the Church and its members. Forcing them to abandon the mission denigrates the importance of religious identity, denigrates beliefs fundamental to identity. Which I carries the day? I am not at all certain. Tentatively, my thought is that the accommodation and exemptions is the better route. In Philadelphia, there are 21 or 22 other agencies involved in offering credentialing to prospective foster parents. I think all of the other agencies work with same-sex married couples, so there are lots of alternatives to CSS, and its presence has no material effect reducing opportunities for same-sex couples. Certainly the continued presence of CSS doe snot impose an undue burden on prospective same-sex married couples with to become foster parents. Permissible obstacles to abortion are higher. Pharmacists, who are engaged in business, are able to opt out of service involving contraceptives. These too involve rights grounded in the Constitution, and yet exemptions and accommodations are to many quite acceptable. Tentative thoughts.
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