Discrimination law and religious exemption at the high court

Two big stories yesterday at the Supreme Court about the much-contested crossroads of discrimination law and religious exemption. In one, the Court “agreed to review a challenge to Philadelphia’s policy of excluding Catholic Social Services from its foster care system because of its refusal to place children with same-sex couples.” It’s not quite the case some readers will expect, though:

Note that Philadelphia was enforcing a local ordinance of its own making; the case is thus on a very different footing than if it were, say, a challenge to the Obama-era regulations (which HHS has since proposed to rescind) that tried to arm-twist all states and cities into adopting policies like Philadelphia’s. In the HHS episode, it was the liberal side of the controversy that was trying to impose a uniform standard from coast to coast; in this case, it is some conservative religious groups that hope to do that. Scott Shackford has more in a piece at Reason quoting my views, as does the Christian Science Monitor in a piece last week.

In the other case, Justice Samuel Alito, joined by Justices Clarence Thomas and Neil Gorsuch, called on the Court to revisit a 1977 precedent in which it interpreted federal employment discrimination law so as not to require employers to accommodate workers’ religious beliefs if doing so would involve more than de minimis cost or disruption. Back then, it was mostly liberals who wanted a standard less favorable to employers than that; since then many liberals and conservatives have swapped places on the issue. The full piece is here.


  • In my opinion, Philadelphia wants to drive Catholic Charities out of the biz, thus clearing the field for non-profits who will (through employees or cut-outs) make contributions to the Party.

  • Re: “trying to impose a uniform standard from coast to coast,” it seems we already have a document that does that, the First Amendment to the United States Constitution, and any group that actually tries to enforce that standard shouldn’t be seen as engaging in “whose ox is being gored” tit for tat. Supporting the First Amendment is not the yin to opposing the First Amendment’s yang.

    • Since Employment Division v. Smith in 1990, the Supreme Court has held that the First Amendment to the Constitution does *not* create a right of religious exemption to generally applicable and neutrally intended laws. Now, it may be that the plaintiffs in Fulton v. City of Philadelphia can point to real difficulties in applying that doctrine, and can argue in all good faith that the Court should consider returning to the then-majority views of Justice Brennan in the days of Sherbert and Yoder. But to state as if a truism that the First Amendment “already… does that” is to assume that such an argument has already proved victorious, and that the Court has in fact overturned Employment Division v. Smith — which it hasn’t. To overturn that case, one would need to overcome Justice Scalia’s arguments that accommodation is best worked out through the political process, an implication of which, in our system of federalism, is the likelihood that there will not be a single uniform standard of accommodation that prevails from coast to coast.

      • Walter, good points, and our divergent views reveal our differing ways of reading the Constitution. Of course, your way is legally and practically correct, but a guy can dream. You — “the Constitution says what the Supreme Court says it says.” Me — “the Constitution says what it says.”

  • It seems to me that so long as Philadelphia is not preventing Catholic Social Services from handling adoptions, this amounts to asking the courts to decide policy, not law.

    As a policy issue I would want the city to let Catholic Social Services participate in their foster care system. The more adoptions the better. But I don’t live there so I don’t have a say.

    As a legal issue, can Philadelphia have non-discrimination rules for its contractors? Can the courts force them to do business with someone they don’t wish to? If so, how do you distinguish that from forcing the baker to bake that cake or the photographer from documenting a same-sex wedding?

    Policy differences shouldn’t be decided by the courts.