A puzzling Supreme Court decision | Columns
Of the recent US Supreme Court decisions, the most criticized – and rightly so – was its decision in Brnovich v. Democratic National Committee, that Arizona had the right to enact a law clearly aimed at preventing the vote by this ruling. minority populations in the state.
The most devastating criticism of that decision is the dissenting opinion written by Judge Elena Kagan, which can be easily viewed in the official record of the court’s decision. It effectively nullified the legal rationale of the majority by exposing its blatant misinterpretation of the 1965 Voting Rights Act.
But the court’s most interesting decision, for me, was the Fulton v. City of Philadelphia. The City of Philadelphia operates a foster care placement program by contracting with a host of private agencies. She canceled her contract with a Catholic Social Services (CSS) agency when she discovered that CSS would not consider same-sex couples as potential foster or adoptive parents. The city has a non-discrimination clause in its contracts that prohibits discrimination on any ground, including sexual orientation. The city asked CSS to change its policy, but CSS refused. CSS then sued the city for violating its constitutional right to the free exercise of its religious beliefs.
All the lower courts upheld the city’s action. The Supreme Court did not. He ruled that the city had violated the Free Exercise Clause of the First Amendment. The vote was 9-0. This vote was, at first glance, astonishing. How could the three liberals on the ground agree with the Conservative majority on this issue? Yet the Liberals did not table any notice. They (Stephen Breyer, Sonia Sotomayor, Kagan) joined with Brett Kavanaugh and Amy Coney Barrett in supporting the majority opinion written by Judge John Roberts. Samuel Alito filed a very long concurring opinion joined by Neil Gorsuch and Clarence Thomas.
What the hell was going on?
It appears that another – larger – question was at stake: which previous Supreme Court case should guide the court’s decision in similar cases.
Since 1990, the court has considered a case known as the Division of Employment, Oregon Department of Human Resources v. Alfred Smith (or simply “Smith”) when considering cases in which it is alleged that a law violates a person’s right to the free exercise of religion. The court ruled, in that decision, that “the right of free exercise does not exempt an individual from the obligation to comply with a valid and neutral law of general application on the grounds that the law proscribes (or prescribes) the conduct that his religion prescribes. (or outlawed). Smith concluded that to do otherwise would “make the professed doctrines of religious belief superior to the law of the land and, in effect, allow any citizen to become law for himself.” In other words, if a law serves a useful purpose, applies to everyone equally, and there is no indication of any intention to interfere with specific religious beliefs or practices , then this law must be obeyed. It cannot be invalidated because it happens to weigh on a certain religious practice.
In the Fulton case, however, the majority concluded that Smith was irrelevant. The Philadelphia rule of non-discrimination allowed exceptions, so it was not universally applicable, as Smith demanded. Smith was therefore set aside and the majority concluded that the city’s refusal to contract with the CSS was, indeed, a violation of First Amendment rights, since the city should have made an exception for the Catholic agency.
The most conservative judges were far from satisfied with this result. What they wanted was a re-examination of Smith. Alito’s long concurring opinion was actually an extended argument against Smith, in which he insisted it be dismissed as a precedent. If the three Liberals had not joined with Kavanaugh, Barrett and Roberts in creating a majority, Alito might have succeeded. That is why the Liberals voted the way they did.
Alito’s opposition to Smith was, in essence, that it offered inadequate protection to believers. He insisted that any law which imposes even a slight burden on the exercise of religion must be “narrowly designed to serve a compelling public interest” (i.e. subject to “rigorous scrutiny”) – a standard that few laws can meet. In other words, Smith made the constitutionality of a law that interfered with religious practices far too easy. For Alito, the law of the land must always give way if religious beliefs are hampered. For him, the right of believers to act according to their beliefs is absolute.
There is no doubt that the framers of the Constitution gave importance to religious rights by making them the first rights explicitly identified in the Bill of Rights. There were obvious historical reasons for this. As we all know, the settlements were founded, in part, by people fleeing state-sponsored religious persecution. In many European countries, religious conformism imposed by the state was the rule. (Several colonies even imitated this pattern.)
It was a time when religion was an important part of people’s lives and, since religion by its very nature has no effective means of settling doctrinal disagreements, when Christianity split into several factions. after the Reformation, the doctrinal differences of these factions were irreconcilable, and that often led to conflicts between them, even to war.
Thus, at the time of the Constitutional Convention, there was ample historical evidence that religious intolerance could cause serious civil unrest. It was both natural and prudent for the Constitution of the United States to state that the new America would insist on religious tolerance and that the government would play no religious role except to ensure that all religious views were protected against interference.
Historical circumstances may explain why the Framers thought it advisable to make the protection of religious freedom a visible part of the Bill of Rights. However, they do not explain why Alito is so hostile to Smith and so insists that religious rights are absolutely inviolable. It’s hard not to suspect that Alito, as a practicing Catholic, actually believes exactly what Smith denies, which is that what he considers the laws of God to be superior to the laws of the land. It is also plausible to suspect Alito of believing that religion – especially Christianity – is now in danger and that religious rights must therefore be defended with exceptional vigor.
Times have indeed changed. The influence of religion has declined – dramatically in Europe, less in the United States, but still markedly. Although the right to free religious practice is still recognized, it is not considered by many people to be more important than other rights, nor less subject to limitations, when circumstances do.
The point is, Smith is right for our time. The laws of the land must prevail; and the religious must accept to be inconvenienced, at least if it is simply an unintended effect of laws which people generally think are beneficial.
Leonard Hitchcock of Pocatello is an alumnus of the University of Iowa and did graduate work at Claremont Graduate University and the University of California at San Diego. He taught philosophy in California and Arizona for 15 years. In 1985, after graduating as a librarian, he was hired by Idaho State University. He retired from the Oboler Library at ISU in 2006.