In Fulton v. Philadelphia (6/17/21), in a decision penned by Chief Justice Roberts, the court unanimously upheld the rights of a Catholic adoption agency (Catholic Social Services, or CSS) to refuse to place foster children with same-sex couples. It was a 9-0 decision, as it should have been, but it was decided narrowly and artificially by six of the justices, which irked the other three.
The background: A law in Philadelphia says that no contractor with the city government may discriminate on the basis of sexual orientation, which is obviously reasonable and enlightened. This law, however, was construed to be conflict with Catholic adoption and foster agencies. Meaning that if a woman wants to give her baby up for adoption or foster care, and wants the family to hold Catholic values, and so wants the baby to be fostered by a male-female couple, that is now considered (by some) to be discriminatory. This led the city to say that they would no longer do work with Catholic foster agencies, and the issue was elevated to the Supreme Court. Two days ago, the court ruled 9-0 in favor of the Catholic adoption agency, which is obviously the right decision. To call the Catholic Social Services’ practice discriminatory is absurd: no one is saying that same-sex couples cannot adopt children, only that biological parents have the right to request the genders of parents for their own children whom they are setting up for adoption.
Here’s the problem. Most of the justices — and Chief Justice Roberts in particular, as usual — refused to take the issue head on. The question was whether or not to overturn Employment Division v. Smith (1990) (penned by Justice Antonin Scalia), which has always been a problematic ruling. That ruling held that the state could deny unemployment benefits to Native Americans who were fired for using the drug peyote, even though the drug was part of a religious Native American ritual. The liberal Blackmun had penned a strong dissent, stressing that eating peyote is an act of worship and communion for the indigenous peoples, and should be protected on grounds of freedom of religion/expression. Oregon, he wrote, should not be a hostile environment for the practice of Native American religion, and he further noted that the religious use of peyote helped curb effects of alcoholism on the Native American population; there was practically no illegal traffic in peyote to worry about; etc. Employment Division v. Smith, in a word, was a decision made by conservative justices out of hostility to an “unorthodox” religion, and it demolished forty years of judicial precedent.
The ruling of Employment Division v. Smith remains just as problematic today when applied to an “orthodox” religious group like Catholic Social Services. But the justices copped out and didn’t face Employment Division v. Smith squarely. Instead of saying that non-discriminatory policies still need to make carve-outs for religion and other forms of free expression, Roberts said that Philadelphia’s non-discriminatory policy “is not generally applicable”; that the city’s policy was not a “neutral policy” — implying that if the city somehow made it a neutral policy (?), then maybe the city could then refuse to work with CSS; etc. This is the same evasive maneuver he pulled three years ago, with the ruling on wedding cakes for gay couples.
Flashback to the wedding cakes
In Masterpiece Cakeshop, Ltd. v. Colorado Civil Rights Commission (6/4/18), the majority (7-2) upheld the right of a private business owner (Jack Philipps) to refuse to design one of his products in a particular way (i.e. the right of a baker to refuse to make a wedding cake that celebrates gay marriage). Of the seven justices, however, only Neil Gorsuch took the issue head on, arguing that the Colorado Civil Rights Commission had failed to recognize that private business owners cannot be compelled to create a product that they object to on religious or moral grounds, which is indeed what the Commission had already acknowledged in its own treatment of three bakers who refused to bake cakes with anti-gay messages on them. The Commission, said Gorsuch, should have found in the Philipps’ favor, just as it had found in favor for the other three bakers. All four bakers were in the same situation. The three bakers refused to sell a cake that denigrated same-sex marriage, just as Jack Philipps refused to sell a cake celebrating same-sex marriage. Most critically: The atheist bakers in the first case were happy to sell to persons of Christian faith, just as the conservative Christian baker in the second case was happy to sell to gay people. In both cases, it was the kind of cake, not the kind of customer, that mattered to the bakers. Gorsuch’s reasoning was correct: Business owners cannot be compelled to artistic design, only to provide equal access to their products.
But instead of saying that — that private business owners have a right to not design their products in a way they choose not to — the seven justices waffled, saying that the way in which the Civil Rights Commission decided the case demonstrated “animus for Philipps”. Implying, in other words, that if the Commission had not demonstrated “animus” for the baker (?), then maybe the baker could have been forced to bake the cake for a same-sex couple. These evasive rulings sidestep the critical Constitutional issue. They narrow the issue so artificially so that Chief Justice Roberts can get as many possible justices to agree, for sake of court harmony, without ever really deciding anything.
Right decision with no resolution
Gorsuch was rightly impatient with his fellow justices (and Roberts in particular) in the cake-baking episode, and now, Gorsuch, Thomas, and Alito are all rightly impatient with their fellow justices (and again, Roberts in particular) for another feeble ruling. Technically it’s the correct decision. Under the the free exercise clause of the First Amendment, Catholic Social Services has the right to place children in homes as they have been doing. But Employment Division v. Smith should have been either overturned or qualified as needed. Gorsuch was also right, in his separate concurrence, when he noted that the majority had undertaken a “dizzying series of maneuvers” to arrive at their judgment.
Put simply: Chief Justice Roberts needs to worry less about harmony on his court, and more about fulfilling his mandate. The goal shouldn’t be 9-0 rulings. They should be proper rulings, regardless of the fireworks they bring.