Courts

Alito Hopping Mad As Supreme Court Holds Off On Opening Discrimination Floodgates

There's some deeply worrying stuff in this dissent.

By  
on

(Photo by Alex Wong/Getty Images)

CNN’s rapid response news alert declared of the Fulton v. Philadelphia opinion handed down this morning, “The Supreme Court on Thursday said that Philadelphia violated the First Amendment when it froze the contract of a Catholic Foster Care Agency that refused to work with same-sex couples….” That certainly sounds like a win for right-wing of the Supreme Court.

But you don’t have to look very far to realize that’s missing a whole lot of the action in this case. Justice Alito put out 77 pages worth of raw “first time caller, long time Dittohead” energy railing against the majority opinion. As usual, Justice Alito is peeved because he’d really been hoping to overrule yet another decades old precedent. Don’t worry, buddy. You’ll get your chance next year when you overrule Roe.

In Fulton, a foster care service explicitly said it would refuse services to same-sex couples. But, that organization collects public funds from the city of Philadelphia and, since Philadelphia has an understandable hangup about sending taxpayer dollars to further discrimination, it kind of put the kibosh on the arrangement. But the Catholic foster care agency proclaimed this as a violation of its religious liberty to… take government money to do what it wants? No one’s suggesting — in this case anyway — that they can’t deny services to same-sex couples, only that they don’t get to do that on the public dime.

Frankly, the contours of this argument should be obvious to conservatives because it largely tracks the complaint against public funding for Planned Parenthood. Except, of course, Planned Parenthood isn’t using public funds to do anything we have long-standing civil rights laws about.

But since consistency is the hobgoblin of honest actors, right-wing groups leapt upon the Fulton matter as an unconscionable breach of religious liberty.

The majority, declining to overrule the Smith test, focused on the fact that Philadelphia allowed the commissioner overseeing the program to issue discretionary exemptions from the rules. If the possibility of such an exemption exists, then it’s no longer about the city proving they have a neutral policy on discrimination, they need a compelling reason for the decision to cut off the specific foster care group when it could’ve granted a waiver. It’s a janky distinction but it’s enough to get the majority out of the case without overruling a quarter century of precedent.

Sponsored

And this really chaps Alito’s hide.

It’s hard to keep a consistent through line over 77 pages. It shouldn’t be hard to keep it over two paragraphs:

As far as the record reflects, no same-sex couple has ever approached CSS, but if that were to occur, CSS would simply refer the couple to another agency that is happy to provide that service—and there are at least 27 such agencies in Philadelphia.

Oh that’s nice. But see the next paragraph:

Remarkably, the City took this step even though it threatens the welfare of children awaiting placement in foster homes. There is an acute shortage of foster parents, both in Philadelphia and in the country at large.

Sponsored

Wait, they can’t use the at least 27 other agencies? The ones that would accept more people to fill the “acute shortage of foster parents”? Did anyone edit this thing?

Alito launches sneering broadsides into Scalia’s opinion in Smith — though takes an aside to venerate another precedent-obliterating Scalia opinion in Heller, perhaps to atone for the earlier sacrilege — excoriating the majority for not going the extra mile in this case. Make no mistake, the Smith decision is clumsy and absolutely sucks, but the fervor behind overruling it right now doesn’t stem from a genuine interest in cleaning up jurisprudence. It’s all about removing a case that’s seen as an impediment to the latest conservative interpretation of religious liberty as a constitutional escape clause that gets folks out of non-discrimination laws.

Because when Scalia wrote Smith, he envisioned waves of hippies skirting law and order regimes by claiming their religion compelled them to use drugs or engage in homosexual relations or whatever else Scalia feared. Today, the right-wing finds itself in the role of Scalia’s imagined hippies, hoping to bootstrap their disdain for laws guaranteeing basic civil rights onto their religion. Smith has outlived its usefulness to the cause of trampling basic dignity and must be eliminated.

But we’ve got to wrap this in some strained originalism just because:

Not only is it difficult to square Smith’s interpretation with the terms of the Free Exercise Clause, the absence of any language referring to equal treatment is striking. If equal treatment was the objective, why didn’t Congress say that? And since it would have been simple to cast the Free Exercise Clause in equal-treatment terms, why would the state legislators who voted for ratification have read the Clause that way?

Pretty sure they would’ve read it to mean “don’t burn people at the stake as heretics” because the concept of reading “free exercise” as a guarantee that taxes must be levied to maintain a partial welfare state to be given to the Catholic Church would be so bonkers to those state legislators that their heads would explode.

It’s a long and confusing decision. At one point he chastises Smith for failing to recognize that the Framers would have seen the only exceptions to Free Exercise as peace and safety, which, not for nothing, would seem to fit the illegal drug use in Smith — or at least would fit the then-prevailing understanding of the drug “threat.”

And there’s barely a hint of civility. No “respectfully,” massive shade thrown at Scalia, even Barrett gets a mean footnote:

JUSTICE BARRETT makes the surprising claim that “[a] longstanding tenet of our free exercise jurisprudence” that “pre-dates” Smith is “that a law burdening religious exercise must satisfy strict scrutiny if it gives government officials discretion to grant individualized exemptions.” Ante, at 2 (concurring opinion). If there really were such a “longstanding [pre-Smith] tenet,” one would expect to find cases stating that rule, but JUSTICE BARRETT does not cite even one such case.

Hey man, cut her some slack. She didn’t even know what was in the First Amendment at her hearings so this is pretty good for her.

But the vitriol directed at Barrett says a lot. Alito thought she was going to help him get his band together to rework the First Amendment to open the door to unlimited discrimination if it could plausibly tie itself to a religion. The movement’s biggest proponents are clearly focused on the LGBTQ+ community today, but it’s not like their constitutional vision has brakes.

Segregation was justified as scriptural by fundamentalists in my lifetime. There’s a lot not to like about Smith, but Alito and his Religious LibertyTM cronies are recklessly pushing the law toward a troubling place. Or, and this is what’s more scary, they’re pushing it exactly where they want it to be.

HeadshotJoe Patrice is a senior editor at Above the Law and co-host of Thinking Like A Lawyer. Feel free to email any tips, questions, or comments. Follow him on Twitter if you’re interested in law, politics, and a healthy dose of college sports news. Joe also serves as a Managing Director at RPN Executive Search.

Topics

, , , ,