The first major case in the new Roberts Court era with Justice Amy Coney Barrett is a case that could redefine the entire history of American civil rights as we know it by making the primary test of a person's rights being infringed upon wholly dependent not on whether a person is caused physical or economic harm by another, but whether a person's spiritual, religious beliefs are violated as being the main criteria.
When the Supreme Court on Wednesday hears Fulton v. City of Philadelphia, much attention will be on the new justice — it’s Amy Coney Barrett’s third day hearing oral arguments — and on a hot-button case about whether the city may cancel the contract of a Catholic foster care agency because it won’t work with same-gender couples. But a potentially broader issue will arise during the hearing that could potentially reshape the status of religion in U.S. law — further strengthening religious freedom rights in ways that some say has already gone too far.
In Fulton, the court will consider whether the city violated the First Amendment by disallowing Catholic Social Services from being part of its foster care system.
The justices are also being asked to overturn a ruling that has been controversial for religious conservatives since it was made 30 years ago: Employment Division v. Smith. The decision, which says a person’s religious motivations don’t exempt them from neutral, generally applicable laws, was written by Justice Antonin Scalia and said that without limits “every citizen [would] become a law unto himself.”
The Trump administration is supporting Catholic Social Services. It says the court does not need to overturn Smith to rule for the agency and alleges there’s evidence of religious bias in the way the city went about enforcing the law.
The court this week said it would entertain taking up Smith, but it is not obliged to make any ruling or detailed comment about it. However, multiple justices have made comments reflecting their willingness to reconsider that ruling, and lawyers are prepared to present arguments about Smith broadly — and how it pertains to Fulton.
The possibility that the newly 6-3 conservative-majority court could overturn Smith and set a new precedent about the legal status of religion comes as the country is deeply unsettled about how to balance LGBTQ and other rights with the rights of religious traditionalists. There are increasingly diverse views about what constitutes religiosity in general and how it should be weighed against other rights and when and how much religion can be burdened.
A 2016 Pew poll showed Americans split down the middle on whether religious business owners who work in the wedding industry should be required to provide services to same-sex couples or be allowed to refuse. A much higher percentage — 67 percent — said employers with religious objections to providing contraception as part of their health-care plan should still be required to do so.
Demographics also show a country steadily becoming more religiously diverse, pluralistic and secular.
“On the one hand, you look at the [Supreme] Court, and especially with Barrett, religious freedom will be locked up for a while, even as the culture is moving in this other direction unabated,” said Daniel Bennett, a political scientist at John Brown University who focuses on religion.
But this feels like a moment of huge potential for some religious groups and their advocates — religious conservatives in particular — who in recent decades have come to see themselves as endangered. Forty-six percent of evangelicals in an AP-NORC poll earlier this year said their religious freedom was under threat, as did 36 percent of Catholics.
Philadelphia Archbishop Nelson Pérez wrote in a Monday op-ed in the Philadelphia Inquirer that the Catholic church in the Fulton case is being told to “leave its faith at the door if it wants to serve those in need.”
That sense of threat prevails even though many religious liberty experts across the ideological spectrum agree that the legal place of religion has been getting stronger and more secure in the last decade or so. There have been multiple high-profile recent wins at the Supreme Court on cases including those favoring religious business owners (Burwell v. Hobby Lobby), religious employers (Our Lady of Guadalupe v. Morrissey-Berru), religious displays (American Legion v. American Humanist Association) and religious schools (Espinoza v. Montana).
Those cases touch on the two big arenas of religion in constitutional law — the establishment clause and the free exercise clause. Establishment cases deal with the Constitution’s ban on Congress endorsing, promoting or becoming too involved with religion. Free exercise cases deal with Americans’ rights to practice their faith.
If the Supreme Court strikes down E.D. vs. Smith, we become a theocracy, full stop.
That's what's at stake.
That's what was always at stake.
But America decided four years ago and again two years ago that Trump and Mitch McConnell should make those choices.