Justice John Roberts fumbles the ball, again. It’s getting embarrassing to watch the Supreme Court Chief Justice, with my same family name, fall short of expectations, again and again.
The latest fumble concerns the decision in Fulton v. Philadelphia, a case brought to the SCOTUS by the Catholic Social Services of Philadelphia. The Catholic Church has been providing care for Philadelphia’s orphans since at least 1798, according to the Wall Street Journal editorial board. This is long before foster care was even a government service. CSS of Philadelphia has been operating under a city contract for 50 years. No gay couple has ever asked CSS for certification as a foster family. In fact, there are 27 other groups available that meet that need.
Yet in 2018, when a newspaper quoted the archdiocese’ spokesman as saying that CSS couldn’t certify a hypothetical gay couple seeking its services, the city refused to renew the CSS contract. Foster parents sued, including Sharonell Fulton, a black foster mom who has cared for 40 children over the last 25 years. When the lower courts found in favor of the city, the case was appealed to SCOTUS.
The decision of SCOTUS was unanimous in a 9-0 ruling finding in favor of CSS. But as is often said, “the devil is in the details.” The court’s opinion, written by Chief Justice John Roberts, is a narrow one, designed to settle this case but not set any court precedent. “The City offers no compelling reason why it has a particular interest in denying an exception to CSS while making them available to others,” said Roberts in his opinion. This opinion was supported by five other justices including liberal justices Breyer, Sotomayor, and Kagan, as well as conservative newcomers Kavanaugh and Barrett.
The important precedent case is Employment Division v. Smith (1990) which said the First Amendment isn’t necessarily offended when a “generally applicable” law places “incidental” burdens on religion. The WSJ editorial board explains the decision: “In getting six votes, the Chief’s approach is to say that Philly’s nondiscrimination demand didn’t count as “generally applicable,” since the city’s foster contracts reserved the right to make exceptions.” In other words, if you can make an exception for secular reasons, you can make one for religious reasons.
This decision falls short of setting a precedent that protects religious liberty in the future. Chief Justice Roberts once again seems more interested in preserving harmony with his liberal justices than with setting important precedents. This is consistent with his interpretations of the law in other controversial cases such as the lawfulness of the Affordable Care Act.
Three conservative justices Alito, Gorsuch, and Thomas, wrote a separate opinion. They see no reason to dodge the real question which leaves the fate of Smith for another day. Justice Alito asks, “What if it simply deletes the exception clause? Voila, today’s decision will vanish – and the parties will be back where they started.” These three justices argue persuasively that Smith is contrary to the meaning of the First Amendment.
The biggest surprise, and disappointment, is to see newcomers Kavanaugh and Barrett side with the majority opinion of Roberts. WSJ says, “Had they joined Justice Alito, the Court would have a 5-4 majority for a stronger statement protecting religion.” This is especially remarkable since Justices Kavanaugh and Barrett are both Roman Catholics and Barrett was formerly a professor at Notre Dame University.
Justice Alito draws the obvious conclusion: “The Court has emitted a wisp of a decision that leaves religious liberty in a confused and vulnerable state.” There is no doubt this issue will be challenged again in the future.