Supreme Court Dodges Another Religious Liberty Fight

Justices have mostly demurred on the question of whether anti-discrimination laws trump religious freedom.


The Supreme Court once again sidestepped a conflict between religious freedom and anti-discrimination laws when it ruled in June that Philadelphia officials violated the First Amendment by requiring a Catholic charity to certify same-sex couples as foster parents.

Philadelphia refused to renew a contract with Catholic Social Services because the organization would not comply with the city's anti-discrimination laws by serving same-sex couples. That decision, six justices concluded in Fulton v. Philadelphia, amounted to an unconstitutional burden on the free exercise of religion.

The ruling hinged on the fact that the city's foster care contracts gave the commissioner of the Department of Human Services "sole discretion" to grant exceptions to the city's nondiscrimination rules. In the 1990 case Employment Division v. Smith, the Court held that the First Amendment's Free Exercise Clause does not require religious exemptions from "neutral, generally applicable" laws. But in this case, the majority said, the commissioner's discretion meant that Philadelphia's policy was not generally applicable.

The decision bears some resemblance to the Court's 2018 ruling in Masterpiece Cakeshop v. Colorado Civil Rights Commission, which involved a baker who refused to sell gay wedding cakes because he had religious objections to same-sex marriage. In that case, the Court did not say whether Colorado could use its anti-discrimination law to compel such transactions. Instead, the majority determined that the law had not been neutrally applied, citing comments from members of the Colorado Civil Rights Commission that suggested an anti-religious bias.

To the frustration of several justices, both decisions dodged the underlying issue of whether anti-discrimination laws trump religious freedom. In the Philadelphia case, Justice Samuel Alito wrote a concurring opinion, joined by Justices Clarence Thomas and Neil Gorsuch, that urged the Court to consider whether Smith gives the government too much authority to override religious liberty. Justice Amy Coney Barrett expressed sympathy for that view in a separate concurrence. In yet another concurring opinion, Gorsuch argued that Smith was wrongly decided and warned that "these cases will keep coming until the Court musters the fortitude to supply an answer."

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Religion Supreme Court Religion and the Law Discrimination

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40 responses to “Supreme Court Dodges Another Religious Liberty Fight

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  2. Discrimination isn’t an all or nothing thing.

    It is widely accepted to discriminate against bad behaviour and rotten apples.

    Dscrimination only becomes problematic when it is used to coerce and violate people’s rights.

    The courts should simply address this once and for all instead of wimping out for nefarious reasons.

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    2. Regarding cakes etc. It seems to me that there are two separate issues.

      If a cake is available on a shelf or an ordering catalogue everyone should be allowed to purchase it.

      If a cake is a creative design, the creators have the freedom to choose what they create.

      Why can’t everyone just recognize the logic of this?

      1. They want to force dissenters on this idea to bend the knee and offer sacrifices to Caesar.

  3. Bake a “Fuck Biden” cake.

    1. Fun. I’m going to rush out and order one from the local bakery that put up the Biden/Harris sign last election.

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  4. More importantly, until the Court supplies an answer, the harassment of religious objectors to progressive dogma on primarily LGBTQ issues will continue. The Court punting is hurting actual people.

    1. The whole reason the Western establishment pushed paraphilias and now sexual dysmorphia so hard, was to be able to take down its dominant religious ideological rival.
      Christianity is a competitor to the establishment and needed to be vilified somehow. So they elevated various paraphilias to the status of virtues and their practitioners were made martyrs.
      Now Christianity isn’t the only religion that opposed practicing a sexual paraphilia, of course Judaism and Islam, but also Buddhism and most branches of Daoism and Hinduism. But it’s the main competitor, which is why you rarely see the other faiths attacked for homophobia or transphobia.

      1. When Muslim communities in Britain protested LGBT classroom instruction, the government and media establishments seemed very confused about how to handle it.

      2. Christianity needs no help from anyone else in the vilification department. It’s actions against LGBTQ+ people when the religion made it’s positions law is sufficient enough to villify it all by itself. Ditto for Islam and Hinduism.

        As for Judaism, it is the Orthodox and Ultra-Orthodox sects that are meshuga against LGBTQ+ people. Conservative, Reform, Reconstructionist, and Humanist sects of Judaism are much more accepting and at least some perform same-sex weddings.

        And Lao-Tzu said nothing in the Tao De Ching pro- or con- about LGBTQ+ people, so for Taoism, sexuality is obviously as fluid as water and Yin and Yang are all as one.

        Buddhism may be hardcore against LGBTQ+ in it’s priesthood, but it certainly hasn’t stopped non-hetero, non-binary sexuality amomg Asians.

        As for private, non-governmental discrimination against LGBTQ+ people, it is nothing that a cake-baker app and Yelp cannot solve to everybody’s satisfaction.

  5. “Masterpiece Cakeshop v. Colorado Civil Rights Commission, which involved a baker who refused to sell gay wedding cakes because he had religious objections to same-sex marriage.”

    Well, the ‘Masterpiece’ decision I read was about refusing to ARTISTICLY DECORATE one specific cake, in a manner of compelled speech that violated his religious convictions. Selling cakes to homosexuals was not the question. Any and all baked goods for sale were sold regardless of any preferences of the customers.

    Oh, right, Scott again.

    1. Yesterday’s facts are forgotten in favor of today’s narrative, and then become tomorrow’s misinformation.

    2. You have to wonder if he gets these things wrong on purpose or if he’s really this ignorant?

  6. But in this case, the majority said, the commissioner’s discretion meant that Philadelphia’s policy was not generally applicable.

    What’s magic about ‘this case’? Politicians and bureaucrats generally use ‘discretion’ in developing and applying ‘policy’!

  7. “these cases will keep coming until the Court musters the fortitude to supply an answer.”

    Heh. The Justices want to keep providing work for their former colleagues.

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  9. Anti-discrimination laws trump religious freedom

    How legislated *entitlements* trump all over everyone else’s rights except those being granted the Power of the Gov-Guns for their own *entitlements*.

    The running story of the [WE] mob left for the last 50-years.
    And every-time they are granted an *entitlement* they just want MORE, MORE, MORE!!!! Which has induced the Gov-Gun-Power-Mad society we have today where EVERYTHING is granted by the Gov-Gods instead of *EARNED*!!!!

    1. Your constitution got trumped by the Civil Rights Act decades ago. You’re just being informed of it piecemeal.

      1. Introduced by Emanuel Celler (D–NY)
        Signed by President Lyndon B. Johnson (D).

        Although more congress supported by the [R] party than the [D] party.

        All in the name of “Public School” systems (NOT Religion).
        A branch of the British Governing Public Schools Act 1868…

        So the real question is — If the USA fought the British for Independence WTF are they doing cancelling their foundation and insisting we be exactly as the British???

        Why was all that blood shed for freedom for; if the USA is going to ignore that Individual Liberty and Justice foundation and just instantiate another British Parliament?

  10. Given that anti-discrimination laws already trump constitutional freedom of association, why wouldn’t they trump religious freedom?

    Anti-discrimination trumps everything, including the constitution. Period.

    1. Or saying it correctly … [WE] mob legislation that *lawlessly* violates the People’s Law over them is an act of treason and an attempted take-over of the USA; but it’s totes great. Period.

      Get the required 2/3rd Congress and State Ratification or just F-OFF *criminals*.

    2. No, we still have freedom of association, just not freedom of dissociation. We’re allowed to get together with anyone we want, but we’re not allowed to stay away from anyone we want.

      1. Which could be well established within Public Spaces. NOT in privately owned spaces.

        but then again; Sell your Individual Souls to the [WE] foundation.. Because YOU don’t own you (or your property), the [WE] foundation does.

    3. Freedom of association is not a concept found in the US constitution.

      1. 1st Amendment —
        or abridging the freedom of speech, or of the press; or the right of the people peaceably to assemble.

        Exactly what is different between “Freedom of Association” and “Peaceably to Assemble”? Internet Chat? 🙂 lol..

        1. The words. The words are different.

          1. A verb and a nominalisation, from the same root.

            So, not meaningfully different.

            You could argue Freedom of Association entails non-peaceable association, but it’s not very persuasive.

            With respect to the “freedom of association” at issue in excluding whatever a peaceable assembly’s undesirables are, there is no difference.

        2. Leftists like Tony can only view “peaceful assembly” as marching on the streets pumping fists and signs up in the air. Hence, their freakout over Citizens United.

  11. >>refused to sell gay wedding cakes

    cakes identify as gay or is baked into their dna?

  12. If “Catholic Social Services” is anything like the catholic charities in my area, they provide immeasurable good to truly poor people in need. Removing a significant source of their funding to appease some social justice bullshit will have a very real effect on those in need. Which of course they knew, but eggs, omelets, etc.

    Nice work, assholes.

    1. Two rights don’t trump a wrong.

  13. I struggle to see any reasoning for why you should be exempt from the law in the singled-out instance of anti-discrimination policy. There are all sorts of religious practices that violate the law.

    You are welcome to take the position that the constitution is maximal in its protection of religious practice, to the extent that everything up to child sacrifice should be permitted as long as it is justified with fairy tales from sufficiently old books. But that sounds stupid and insane to me.

    I prefer to think of the constitution as a product of Enlightenment humanist principles, and that its religious toleration is meant in service of individual liberty, specifically not the proliferation of religious bigotry in society. At any rate, the constitution does not suggest that you can be free from laws as long as you provide a sufficiently silly excuse.

    Then there’s the empirical matter. There is no God, but there are gays. We can try to use the law to interpret and appease the feelings of something that doesn’t exist, or we can focus on actual humans.

    1. … Or we can just stop playing the National Socialist (i.e. Nazi) governing system game and *respect* Individual’s freedom/will-power and their PRIVATE PROPERTY!

      I realize in such a Nazi-Regime controlled nation such an idea seems crazy; but it’s that crazy idea that made this nation the fastest most successful and happy nation in the world. UNTIL of course the Nazi-Regime started growing within it.

      1. This comparison of Democrats to Nazis feels so tenuous to me. The Democrats don’t govern much differently than any old center-left party from Europe or whatever, except Democrats are much more centrist. Are all of those parties actually the Nazis? Have the Nazis already won?

        1. They’re basically fascist. Any time you hear “public-private partnership”, think fascism.

        2. There’s a reason the USA isn’t just another Europe or Germany (i.e. Hitler) or etc, etc, etc.. I’ll grant you that the termed coined Nazi (def; National Socialist) grew about specifically due to the National Socialist German Worker’s Party.

          But that fact doesn’t exclude all National Socialist party members and policy pushers from being *correctly* identified as Nazi’s.

          It’s my belief that easily-deceived people need to be confronted directly to fully understand exactly WHAT ideology they are actually supporting and nothing ties that up better than what it has proven to be historically.

          There is no NEED to erase that historical lesson just so the USA can repeat it.

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