Law and Religion

When Does the Free Exercise Clause Mandate Religious Exemptions?

The outcome of today's Fulton v. City of Philadelphia.

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For 60 years, the Court has been considering when religious objectors should get religious exemptions from generally applicable laws.

  • In Sherbert v. Verner (1963), the Court (in an opinion by Justice Brennan), held that religious objectors are generally entitled to such exemptions, unless denying the exemptions is the least restrictive means of serving a compelling government interest.
  • In Employment Division v. Smith (1990), the Court (in an opinion by Justice Scalia), held that such exemptions from neutral, generally applicable government actions are generally not constitutionally required. But when the government "has in place a system of individual exemptions, it may not refuse to extend that system to cases of 'religious hardship' without compelling reason," because when there is such a discretionary exemption system, the law isn't generally applicable. (Likewise, if the law deliberately targets religion, it isn't generally applicable, either.)
  • Since Smith, the federal government and about 2/3 of the states have implemented either statutory general religious exemption schemes (so-called Religious Freedom Restoration Acts or RFRAs) or similar schemes under state constitutions; but 1/3 of the states lack such schemes, so the broad Free Exercise Clause question is especially important there.
  • In Tandon v. Newsom (2021), which followed up on Roman Catholic Diocese of Brooklyn v. Cuomo (2020), the Court (in a per curiam agreed to by Justices Thomas, Alito, Gorsuch, Kavanaugh, and Barrett) also concluded that strict scrutiny is required whenever "government regulations … treat any comparable secular activity more favorably than religious exercise," even when they do so using categorical exceptions rather than discretionary ones.

In today's Fulton decision, the Court resolved the religious exemption question narrowly, but showed that the Justices' views are sharply fractured on the broader issue. The case arose out of a Philadelphia policy that required foster care evaluation agencies (which contract with the city to evaluate prospective foster parents for foster child placements) not to discriminate based on, among other things, sexual orientation. Here is how the opinions resolved this:

[1.] The majority opinion by Chief Justice Roberts, joined by Justices Breyer, Sotomayor, Kagan, Kavanaugh, and Barrett: When a legal rule allows for "entirely discretionary exceptions" (e.g., that a foster care evaluation provider "shall not reject … prospective foster or adoptive parents … based upon … their … sexual orientation … unless an exception is granted by the Commissioner or the Commissioner's designee, in his/her sole discretion"), the government must generally provide such exceptions for religious objectors as well.

[A.] That is true even when the government is acting as manager (e.g., administering government contracts or benefits programs, or presumably governmental employment), not just when it's acting as sovereign, ordering private citizens to do or not do things using their private property.

[B.] And it's true even if this discretionary power has never been used. "The creation of a formal mechanism for granting exceptions renders a policy not generally applicable, regardless whether any exceptions have been given, because it 'invite[s]' the government to decide which reasons for not complying with the policy are worthy of solicitude—here, at the Commissioner's 'sole discretion.'"

[C.] The government might in theory be able to justify denial of a religious exception (even where other exceptions are available in the government's discretion) but only if the denial passes "strict scrutiny"—"if it advances 'interests of the highest order' and is narrowly tailored to achieve those interests." ("[S]o long as the government can achieve its interests in a manner that does not burden religion, it must do so.") And the existence of the discretionary exception system tends to undermine any claim of narrow tailoring; for instance, in this case:

[T]he City [asserts an interest] in the equal treatment of prospective foster parents and foster children. We do not doubt that this interest is a weighty one, for "[o]ur society has come to the recognition that gay persons and gay couples cannot be treated as social outcasts or as inferior in dignity and worth."

On the facts of this case, however, this interest cannot justify denying CSS an exception for its religious exercise. The creation of a system of exceptions under the contract undermines the City's contention that its nondiscrimination policies can brook no  departures. The City offers no compelling reason why it has a particular interest in denying an exception to CSS while making them available to others.

[D.] But what about the broader question: What if there is no discretionary exception in the government rule, and the rule categorically forbids (or mandates) certain behavior, perhaps subject to some categorical (nondiscretionary) exceptions? When should religious objectors get exemptions from such generally applicable rules? The Court deliberately doesn't answer that question.

[2.] Justice Barrett, joined by Justice Kavanaugh, concurring: The original meaning of the Free Exercise Clause is unclear on the broader question of religious exemptions from generally applicable laws, but "As a matter of text and structure, it is difficult to see why the Free Exercise Clause—lone among the First Amendment freedoms—offers nothing more than protection from discrimination." Yet Justices Barrett and Kavanaugh are "skeptical about swapping Smith's categorical antidiscrimination approach for an equally categorical strict scrutiny regime, particularly when this Court's resolution of conflicts between generally applicable laws and other First Amendment rights—like speech and assembly—has been much more nuanced." In particular,

To name a few: Should entities like Catholic Social Services—which is an arm of the Catholic Church—be treated differently than individuals? Cf. Hosanna-Tabor Evangelical Lutheran Church and School v. EEOC (2012) [providing broad protection for certain decisions by religious institutions -EV]. Should there be a distinction between indirect and direct burdens on religious exercise? Cf. Braunfeld v. Brown (1961) (plurality opinion). What forms of scrutiny should apply? Compare Sherbert v. Verner (1963) (assessing whether government's interest is "'compelling'"), with Gillette v. United States (1971) (assessing whether government's interest is "substantial"). And if the answer is strict scrutiny, would pre-Smith cases rejecting free exercise challenges to garden-variety laws come out the same way? See Smith.

Justice Breyer expresses no opinion on whether the original meaning of the Free Exercise Clause supports religious exemptions, and on whether the reason for heightened scrutiny stems from text and structure instead. (In City of Boerne v. Flores (1997), he joined Justice O'Connor's argument that concluded original meaning does support such exemptions.) But he agrees with Justices Barrett's and Kavanaugh's skepticism of categorical strict scrutiny here.

[3.] Justice Alito, joined by Justices Thomas and Gorsuch, concurring in the judgment: Strict scrutiny should be the test, regardless of whether the law lets the government grant discretionary exceptions. And the Court should resolve the question now:

[The majority] decision might as well be written on the dissolving paper sold in magic shops. The City has been adamant about pressuring CSS to give in, and if the City wants to get around today's decision, it can simply eliminate the never-used exemption power. If it does that, then, voilà, today's decision will vanish—and the parties will be back where they started. The City will claim that it is protected by Smith; CSS will argue that Smith should be overruled; the lower courts, bound by Smith, will reject that argument; and CSS will file a new petition in this Court challenging Smith. What is the point of going around in this circle?

I hope to have more to say soon about all this, but for now I thought I'd just summarize the opinion, and the signals it sends for Free Exercise Clause litigation going forward.

NEXT: BREAKING: SCOTUS Holds 7-2 Texas Lacks Standing to Press Obamacare Claim (Updated)

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  1. At some point, I dont know who benefits from this endless round of litigation.

    In Heller, didn’t the court just say, hey, 2nd amendment exists now, and lower courts you guys figure it out? Now, they took wayyy to long to follow up on their decision, but that was basically how they went about it.

    Why couldn’t they do that here? 5 justices pretty much said, in the opinion itself, Smith should be overruled. So overrule it. Stop beating around the bush again an again. The virtues of stare decisis go away if you turn precedent into an unworkable mess.

    I’m guessing they are doing the Lutheran Church to Espinoza thing where you have a very narrow opinion with a full court consensus leading to a much stronger opinion in a few years. But it takes way too long and 6 justices already said to overrule it.

    1. If 6 justices already said to overrule it, they could have, but they didn’t. Why not? Methinks you are optimistic and vague in your counting.

      1. Kavanagh and Barrett said they would overrule it later.

        Gorsuch, Alito, and Thomas said overrule it now.

        Breyer said he would overrule it, but that was 20 years ago.

        So at least 5. Maybe 6. My point is that if you will overrule something, why not do it now and decide cases as they come?

        1. Exactly my question. You say they could have done so. They did no do so. I think it’s more likely you are too black and white in your counting.

        2. Because there’s a rule that they have to decide a case on the narrowest possible ground. Otherwise, they’re giving an advisory opinion.

          1. Someone should have told the court that in Bostock. Or Obergebell …

            1. So, on what more narrow ground should they have decided Bostock and Obergefell?

        3. Well,
          1: We got a 9-0 decision bench-slapping the woke.

          It’s a love letter from every single member of the Court: “Dear wokesters. If you target the religious with your gay rights laws, you’re going to lose. Back off, now, or else”

          2: It’s a shot at the waterline to the “court packing” movement. And the “Breyer retire now” movement.

          Packing the Court ends its “legitimacy”. The Courts really can’t accomplish anything if people don’t respect them (see “John Marshall has made his decision, now let’s see him enforce it.”). The lunatic left not on SCOTUS are apparently too stupid to see this, but the 3 hard core lefties still there are NOT that stupid.

          3: It actually serves as a nice threat. We’ve got 3 Justices saying “we’re going to nuke Smith the first chance we get”, and two more saying “Don’t make us turn this car around, I mean don’t make us have to reconsider Smith. You won’t like the outcome”

          The Panel that heard this in the 3rd went 3-0 for Philly, and got overturned 9-0. Every single panel that hears one of these cases in the future is going to have to ask themselves: “If we rule against the religious, will the SC take this and use it to nuke Smith?”

          4: From all accounts, Roberts was the weak link on supporting Heller. He no longer is needed to get to 5. He’s also no longer needed to get to 5 for overturning Smith. So I think we’re going to see the lower courts a be LOT more circumspect, and a lot mroe willing to find for the religious.

          We’ll see

    2. One reason they couldn’t do that here, is that you can see from Heller that they way “you guys” decided to figure it out was by minimizing the Court’s holding so that the right could continue to be violated.

      Now, that’s fine for the red headed stepchild of the Bill of Rights, that the Court is barely willing to acknowledge, but the Court might not want its 1st amendment rulings treated that way.

      1. Plus Satanism is a religion.

        1. It is.

          The only reason this is a problem to begin with, is that we’re subject to all manner of impositions that aren’t really necessary to begin with. If it would make any sense at all to offer an exception on the basis of religious liberty to a law, that law probably shouldn’t have been in place to begin with.

          1. I agree, and in fact Trump rewrote the marriage laws (divorce laws) by drafting a prenup. So the LGBTQ community fought to be included into laws that wealthy Americans wipe their a$$ with because they are so dumb. So I agree with your general sentiments.

        2. The real problem here is that homosexuality and transgenderism are religions.

          IANAA so I am not using the correct legal phrases, but this is a conflict between the First Amendment rights of two different groups, with the _Fulton_ decision essentially being the same thing as telling the city that it couldn’t refuse to use a LBGTQ-run adoption agency because it refused to place children with Christian couples.

          Science is Biology — Tab A and Slot B equals child and hence family. Every thing else is based on faith — Adam & Steve, or Steve becoming Stephanie — that’s faith that can not be scientifically proven. (It may be *accurate* but still can’t be scientifically proven.)

          Conversely, a different group of people have a different faith that says it isn’t accurate. (All three of the worlds major religions say this…)

          Hence my statement that this is a conflict BETWEEN religious rights — and that it is the gay rights provisions themselves which are in conflict with the establishment clause. Every bit as much as the so-called Blue Laws would be if they were enforced today — mandating Church attendance would be equally unconstitutional.

          1. IANAA

            As always, you should have stopped there.

            1. “Let them eat cake…”

              And how’d that one turn out?

              The fact that you can apparently believe what you stated — and what it implies — should terrify your peers who are As.

  2. What a great synopsis of the opinions in such a short amount of time. I add three things:

    1) I am disappointed Eugene’s brief was not referenced, but not surprised since it took a strong stand on preserving Smith in the face of categorical exemptions.

    2) I’d like to know more about Gorsuch’s argument that the Court went through hoops in interpreting local law in order to avoid addressing Smith. Do federal courts routinely interpret local statutes? Is there a local or state body that ought to be the last say on the matter?

    1. What was the third thing….you wanted to add three things, Josh R.

      1. I had written a comment on Tandon before realizing Eugene already mentioned it. I deleted it and forgot to change “three” to “two.”

        1. I pay attention to your comments, Josh R. Mostly because I learn a lot from them. 🙂

    2. “I am disappointed Eugene’s brief was not referenced, but not surprised since it took a strong stand on preserving Smith in the face of categorical exemptions.”

      I would argue that _Smith_ was reversed by _Harris Funeral Homes, Inc. v. Equal Opportunity Employment Commission_ — both cases involved a religious accommodation, i.e. not working on a specific day of the week, or a biological man being considered female.

      Both were based only on the faith and beliefs of the employee — there is no scientific evidence supporting either belief.

      1. I’m not following how a statutory interpretation case of Title VII is relevant to Smith.

        1. Assuming I cited the right case — the male funeral director who became a female funeral director and insisted on imposing that on the funeral home — they are both very similar cases.

          A: Individual made a decision based on faith rather than fact — he/she still had a “Y” chromosome in every cell and hence would be defined by science as male — and then sought to impose this faith-based value upon his employer.

          B: Employer refused to grant a faith-based accommodation.

          As to Title VII, in this instance, it is a violation of the First Amendment’s Establishment Clause — every bit as much as the Massachusetts law against Blasphemy — 272 MGL 36.

          What exactly is the difference?

          1. You cited the right case. But, the employee’s “faith” had no relevance to the outcome. The Court held the employer’s conduct amounted to unlawful sex discrimination (where the employee’s sex is assumed to be male per the Y chromosome).

            I have no idea what the relevance of the Establishment Clause is.

    3. 2) I’d like to know more about Gorsuch’s argument that the Court went through hoops in interpreting local law in order to avoid addressing Smith. Do federal courts routinely interpret local statutes? Is there a local or state body that ought to be the last say on the matter?

      The state Supreme Court has the last say on the matter. But if it hasn’t spoken, then federal courts are required from time to time to interpret state (or local) laws. Sometimes they will certify a question to the state Supreme Court (but not all states permit that). Sometimes they have to make a prediction based on intermediate state court rulings. Sometimes they don’t have anything to work with and just have to interpret them as an original matter.

      1. Can you cite precedent for my future reference?

        1. It of course all stems from Erie. (That’s Erie Railroad v. Tompkins.) That case held that there’s no general federal common law and that federal courts sitting in diversity jurisdiction must apply state law. It necessarily flows from that that federal courts must determine what state law is.

          As to how they do that, there are millions of cases which say what I said above. Here’s one: Wiley v. State Farm Fire Casualty Co., 995 F.2d 457, 459-60 (3d Cir. 1993):

          Federal courts sitting in diversity “are required to apply the substantive law of the state whose laws govern the action.” Robertson v. Allied Signal, Inc., 914 F.2d 360, 378 (3d Cir. 1990) (citing Erie R.R. Co. v. Tompkins, 304 U.S. 64, 58 S.Ct. 817, 82 L.Ed. 1188 (1938)). We must therefore turn to the substantive law of Pennsylvania to evaluate the propriety of the district court’s grant of summary judgment in this case.

          The Pennsylvania Supreme Court, however, has not spoken on the issues raised in this appeal. Therefore, we must predict how the state court would resolve these issues should it be called upon to do so. Id. Although our review of the district court’s prediction of Pennsylvania law is plenary, in discharging our function we take into consideration the district judge’s prediction of the law of the state in which he or she sits. Compagnie des Bauxites, 724 F.2d at 371. We also examine:

          (1) what the Pennsylvania Supreme Court has said in related areas;
          (2) the “decisional law” of the Pennsylvania intermediate courts;
          (3) federal appeals and district court cases interpreting the state law;
          (4) decisions from other jurisdictions that have discussed the issue we face here.
          Gruber v. Owens-Illinois Inc., 899 F.2d 1366, 1369-70 (3d Cir. 1990).

  3. It looks to me like Roberts saved the Free Exercise Clause from becoming broad permission to disobey anti-discrimination laws.

    It’s interesting that Alito includes a bunch of theoretical horribles (Congress might re-pass the Volstead Act and not exempt sacramental wine!), but this case involves an actual horrible- the adoption system might be forced by the First Amendment to allow discrimination against gay parents- and he isn’t moved by THAT at all.

    1. Well it isn’t much of a horrible is it? The Catholic church had an understanding that they wouldn’t handle the adoption themselves but they forward the gay couple to someone who would … the city was offended by that understanding existing. The gay couple would be able to get an adoption regardless.

      Overruling Smith doesn’t change that. Now, had that understanding not existed, thats a harder question. But I dont think overruling Smith foreclosed that question.

      1. Although I agree the exact nature of this case wasn’t horrible because CSS never turned down a gay couple (they referred them to another agency), wouldn’t overruling Smith call into question every application of anti-discrimination law to religious objectors? That seems likely to open the door to some horribles.

        1. The Civil Rights Act predated Smith by almost 30 years, and yet there were few horribles of this type in between. The only one I can remember, is the Bob Jones University case (in which the religious organization lost).

          1. Well, imagine if Bob Jones University had won? They had the Reagan Administration behind them, so there was certainly some conservative sympathy for them.

            And isn’t what Alito saying that the homophobic equivalent of Bob Jones SHOULD win? Indeed, it looks to me like a lot of movement conservatives want widespread religious exemptions from basically any law that requires them to associate in any way with gays and lesbians. That would be absolutely terrible.

            1. “Well, imagine if Bob Jones University had won?”

              Maybe the other 4000 colleges could have made room for anyone denied entry.

              The school had already made changes, less than a decade after the Civil Rights Act. It probably would have removed the last restriction on its own.

              “Bob Jones University completely excluded black applicants until 1971, and from 1971 until 1975, admitted black students only if they were married. After 1975, the University began to admit unmarried black applicants, but continued to deny “admission to applicants engaged in an interracial marriage or known to advocate interracial marriage or dating.” Wikipedia

              1. If Bob Jones had won, numerous businesses and nonprofits would have claimed a religious right to discriminate.

                One reason Bob Jones slowly changed was it saw the writing on the wall.

                1. “numerous businesses and nonprofits would have claimed a religious right to discriminate.”

                  No, it was already bad business. There would have been very few, if any.

                  They would have had to re-segregate. It was never happening.

                2. Yeah, and why would that have been a problem? Presumably numerous other businesses and nonprofits would have decided not to discriminate.

                  Jim Crow was a problem because it was mandated discrimination. Legally, and by extra-legal violence that was tolerated by local governments in violation of the equal protection clause.

                  We got rid of the mandate to discriminate, but instead of giving actual freedom a try, we then proceeded almost directly to mandating NOT discriminating. So nobody’s really seen what would have happened in an America which was actually free.

                  And now, the logic of denying people choices is working it’s inevitable erosion on the very notion of freedom, and mandated discrimination is coming back. Only the civil rights movement is championing it, not fighting it, this time.

                  1. Brett:

                    Jim Crow wasn’t only a problem because of mandated discrimination. It was also a problem because of private discrimination, often enforced by private violence (which the state then looked the other way concerning).

                    And further, discrimination against people because of irrelevant characteristics is EVIL. It’s not some technical thing. Only completely awful people deliberately refuse service to Blacks or gays. While I understand that in some narrow context, we should respect people’s association and religious rights- e.g., nobody should have been able to compel the Mormon Church to accept Blacks as priests in the 1970’s- when people are doing business, or handling adoptions or foster care of children, or doing anything else that faces the public, they simply should not be allowed to discriminate.

                    Your “freedom” at bottom is only really a freedom for straight white cis male people. Private discrimination is an enormous impediment to the freedoms of minorities. You don’t care about the freedom of a Black person to go into a store and buy something without someone kicking her out because of her race. That person’s freedom doesn’t count to you. You should put down your supposed “principles” for a second and asked yourself how you got so warped that Black people don’t count to you.

                    1. nobody should have been able to compel the Mormon Church to accept Blacks as priests in the 1970’s

                      Why not?

                    2. “Jim Crow wasn’t only a problem because of mandated discrimination. It was also a problem because of private discrimination, often enforced by private violence (which the state then looked the other way concerning)”

                      Said that.

                    3. “Your “freedom” at bottom is only really a freedom for straight white cis male people. Private discrimination is an enormous impediment to the freedoms of minorities. You don’t care about the freedom of a Black person to go into a store and buy something without someone kicking her out because of her race. That person’s freedom doesn’t count to you. You should put down your supposed “principles” for a second and asked yourself how you got so warped that Black people don’t count to you.”

                      That’s because there’s no freedom to go into someone else’s private property and do anything. Not to mention that blacks are more likely to be going into a store to steal or otherwise create mayhem than to buy anything.

                    4. ” Only completely awful people deliberately refuse service to Blacks or gays.”

                      How about Asians?

                    5. “And further, discrimination against people because of irrelevant characteristics is EVIL.”

                      I can’t disagree that the admissions people at Harvard and Yale are EVIL.

                    6. nobody should have been able to compel the Mormon Church to accept Blacks as priests in the 1970’s

                      Why not?

                      Because this is what the ministerial exception should actually apply to. Religions whose doctrines say “only X can be a leader” are protected by the First Amendment.

                    7. Twelve:

                      I think the people who run Harvard and Yale do some really crappy things.

            2. Black and Gay are NOT the same thing.

              Science can identify Black from DNA.
              Science can not identify Gay from DNA.

              Science can identify Black from parents.
              Science can NOT identify Gay from parents.

              1. So speaks Mr Ed, the talking horse’s …

              2. Science can identify Black from DNA.

                Science can identify Black from parents.

                Look up one-drop rules, moron.

          2. It seems most of the religious objections are on gay or abortion rights, neither of which were topics of the CRA.

        2. Well, Josh, let’s turn the question back on you:

          Which “anti-discrimination” laws do you think SHOULD be forced onto religious objectors, but might be tossed if Smith were overturned?

          Specifics, please. For example “I think churches should be required to ordain gay ministers”

          1. Firstly, Hosanna-Tabor has already settled the minister question: the First Amendment secures the right of a church to hire ministers even if doing so violates anti-discrimination laws (including hiring based on race).

            Secondly, most anti-discrimination statutes also permit religious organizations to discriminate against any employee (including the janitor) on the basis of religion.

            Thirdly, apart from those two exceptions, I think religious objectors should be treated the same as secular objectors in applying neutral and generally-applicable anti-discrimination laws.

            1. That’s nice

              So, it appears you’re saying there’s not a single “anti-discrimination” law that you think SHOULD be forced onto religious objectors?

              1. To the contrary, I think most anti-discrimination laws should apply to religious objectors (apart from the two exceptions noted above).

                1. So why didn’t you answer the question with some specific laws that you think should be imposed on them?

                  1. One obvious example is Title VII of the federal Civil Rights Act as applied to non-ministers.

                    1. It must really suck to have ideas so crappy that you’re not willing to just say what they are.

                      So, let me attempt to interpret what you’re saying here:

                      You think that, outside of priests, Churches should be prohibited to fire cross-dressers, mentally damaged people who call themselves “trans”, and gay people who are living and flaunting a life that violates the church’s moral standards.

                      Would that be a correct description of what you mean here?

                    2. Let’s leave aside the question as to whether a church is covered by Title VII by assuming the employer is CSS. Title VII does not permit CSS to fire a janitor because he is gay or transgender and I think that is normatively correct.

      2. Well it isn’t much of a horrible is it? The Catholic church had an understanding that they wouldn’t handle the adoption themselves but they forward the gay couple to someone who would … the city was offended by that understanding existing. The gay couple would be able to get an adoption regardless.

        That sounds fine as long as there are other foster referral services and adoption agencies that will consider gay couples. But what if few of them would, or that the ones that would were much further from where the gay couple lived and worked? How much inconvenience and disrespect must a gay couple take in order to satisfy the religious beliefs of those contracted by the government to provide a service? What if all of the agencies contracted by the city had religious objections to same-sex relationships? At what point is the city’s interest in non-discrimination being undermined?

        This was the whole reason for non-discrimination laws in the first place. It wasn’t that one diner in town was refusing to serve Black people, it was that segregation was the default policy just about everywhere in the South. Black people were systematically excluded from the politically, socially, and economically dominant white society. Religious exemptions to civil rights laws then wouldn’t fly, and they shouldn’t now.

        Whether we are talking about lunch counters, baking wedding cakes, hiring workers, or checking references for those wishing to become foster parents, allowing even religious exemptions to non-discrimination laws undermines them. As soon as one actor gets excused from having to follow non-discrimination law by claiming that their religion requires them to discriminate, then what stops others from claiming the same thing when they don’t want some disfavored minority to have equal rights? Scalia’s words in Smith come to mind. (Paraphrasing from memory rather than quoting) Allowing religious exemptions to generally applicable laws allows everyone to become a law unto themselves.

        1. Right. I view the ideal situation is one where no one is forced to violate sincerely held religious beliefs AND gay people get the services they require.

          The civil rights act, in my view, was necessary to force southern racists to actually accept black people and to obviate the existing discrimination. They wasn’t a way to do this cleanly, so they used a blunt tool. And over time, black people got appropriate services and the South became less racist. Everyone won.

          Here from what I’ve seen the gay couples are able to get the services they need, so forcing someone to violate his beliefs is wholly unnecessary and counterproductive. And I think everyone agrees the Philadelphia mayor is being very unreasonable and idiotic here.

          When that isn’t true to be honest I dont know what the rule should be. And I dont know if the court can establish some standard for it. Maybe they should. But Smith, as far as I can tell, says there isn’t really a balancing act, which is precisely why the court, in this case, essentially used a loophole. Overrule Smith and create it.

          1. Wow, you people really have a “hard on” to do some discriminatin’ in the name of Jesus?!? I hope you get what you so desire and it makes your existence more fulfilling.

            Btw, there are quite a few hobbies other than practicing religion that are quite fulfilling. One hobby that really exploded during the lockdowns was watching porn and masterbating…maybe you should check out that hobby??

            1. If you only support the freedom to do things you approve of, you don’t support freedom at all. I’d also support the freedom of black churches not to hire whites, or the Rev’s Church of Elevated Pseudo-Rationality to only hire pedophiles.

              The only freedom I don’t support is the freedom to commit aggression. I’ll support the refusal to deal with somebody on any basis at all all day long.

              Even FB or Twitter, I’d only take away their Section 230 privileges, since they’re not living by the explicit terms under which they were granted. At that point, they could do whatever they pleased.

              1. Yes…free exercise of religion and liberty and blah blah blah…in the same document with the 3/5ths Clause and Fugitive Slave Clause!! The Constitution also contains the Commerce Clause so the Framers believed free flow of commerce was important. Apparently you want America to be more like France with strikes all the time whenever a group of people feel aggrieved by something…let’s hope reason and sanity prevail and Americans in ISIS don’t get a new legal way to kill people. (self defense is an example of a legal way to kill a person…soon exercising religious freedom will be a legal way to kill other Americans)

                1. I’m not going to defend the fugitive slave clause, but I’ll defend the 3/5ths clause any time you want.

                  The default, as you can see from white women, or children, or the indigent in states that conditioned the franchise on property ownership, was 5/5ths. That’s what the slave states wanted. The slaves who didn’t get to vote would increase the representation of their owners who did.

                  The free states wanted 0/5ths. But they didn’t want it enough to give up on the Constitution, which is why you got the 3/5ths COMPROMISE. That the slave states had never wanted.

                  And morons misrepresent this as an attack on the personhood of slaves, because they’re morons, sure, but also because they are just out to make the Constitution look bad.

                  1. I will do your defense of the 3/5ths Clause one better—I will defend Dred Scott!! Dred Scott is consistent with the values of a society based on white supremacy actively engaged in the removal of Native Americans from the ancestral lands. Motherfuck John Wayne too!!

                    NO JUSTICE!
                    NO PEACE!

                  2. The free states wanted 0/5ths. But they didn’t want it enough to give up on the Constitution, which is why you got the 3/5ths COMPROMISE. That the slave states had never wanted.

                    Compromise is weakness. You don’t compromise with Democrats that just want a chance to paint a few tourists behaving badly as if they were engaging in “insurrection”. You don’t compromise with them on so-called “voting rights” legislation that would just make it easier to steal elections like they did last year. You generally just don’t compromise with leftists that want to destroy everything good about America, right? Why should the free states have compromised with slavers?

        2. “But what if few of them would, or that the ones that would were much further from where the gay couple lived and worked? How much inconvenience and disrespect must a gay couple take in order to satisfy the religious beliefs of those contracted by the government to provide a service?”

          1: You do not have a Constitutional right to my respect. To demand that is to destroy freedom of speech.

          2: How much inconvenience and disrespect must the religious take in to satisfy the desires of a gay couple?

          My answer: the US Constitution guarantees the free exercise of religion. It does not guarantee the free choice of sexual partners. So in any conflict between your desire to live a homosexual lifestyle, and a religious person’s desire to remain true to his or her religious beliefs, the religious win every single time

          1. 1: You do not have a Constitutional right to my respect. To demand that is to destroy freedom of speech.

            You are right, of course. You can be a bigot all day long and twice on Sundays without it ever being against the law. But you don’t always get to act on that bigotry. Good job focusing on one word in my question and ignoring the rest of it.

            2: How much inconvenience and disrespect must the religious take in to satisfy the desires of a gay couple?

            You just talked about gay couples not being entitled to the respect of bigots, so don’t refer to that later, even if it is a mocking mirror to what I wrote.

            The answer is that the religious need to follow the law when providing contracted services to meet government needs. That is how much inconvenience they must take in. If they can’t, because of their religion, deliver the services that the government wants to provide to its citizens that need them under the conditions that the government requires, then they don’t have to accept the contract at all.

            The only thing that makes the government’s requirement not to discriminate against same sex couples seem at all unreasonable would be if you actually agree with CSS that a same sex couple shouldn’t foster children. Strip out any bigotry toward gay people, based on religion or otherwise, and the city’s policy is clearly the correct policy, since the placement of children for foster care should be based on factors that affect the ability of a couple to care for them, only. It should not depend on the irrational prejudices of those doing the evaluation.

            *Also, why did you make it personally directed at me, anyway, when I’ve given no indication that my opinions are about my own life? That is … “your desire to live a homosexual lifestyle”, while remaining impersonal about ” a religious person’s desire to remain true to his or her religious beliefs” even though you had talked about “my respect” previously? That inconsistency betrays you. You want to discriminate against gays because your religion tells you that they are icky. Your other attempts to make it seem like you are neutrally defending the rights of CSS or others on principle alone is clearly disingenuous. That is why I went ahead and spoke of “you” in the first part of my reply.

            For the record, I am not LGBTQ+, but I know and care about people that are. And if I didn’t personally know and care about such people, I would still want to afford them equal rights and stand against those that would discriminate against them because of bigoted beliefs.

            1. “You just talked about gay couples not being entitled to the respect of bigots, so don’t refer to that later, even if it is a mocking mirror to what I wrote. ”

              Bzzt. Wrong. You demand respect from others, while refusing to give it to them. I’m going to mock you and call you out on it, so long as you continue doing it.

              1. Bzzt. Wrong. You demand respect from others, while refusing to give it to them. I’m going to mock you and call you out on it, so long as you continue doing it.

                Whatever. Still focusing on something to distract from the question I asked. How much inconvenience should a same sex couple have to endure to accommodate the religious beliefs of those that want exemptions from otherwise neutral non-discrimination laws as they provide services contracted to the government? The same question I would ask in regards to any exemption from any form of non-discrimination.

                1. “How much inconvenience should a same sex couple have to endure to accommodate the religious beliefs of those that want exemptions from otherwise neutral non-discrimination laws as they provide services contracted to the government?”

                  Complete and total inconvenience. if they don’t want to put up with that inconvenience, they’re encouraged to go bother someone who isn’t religious, and doesn’t find their behavior sinful and repugnant.

                  Let me put it to you this way: In an America where Twitter et al are allowed to censor conservatives and refuse to do business with us, no one else has the slightest shred of a moral right to demand that others do business with them.

                  The First Amendment guarantees my right to freedom of association. You don’t legitimately get to override that right with your “neutral non-discrimination laws”. No matter how good that makes you feel

            2. “The answer is that the religious need to follow the law when providing contracted services to meet government needs.”

              Not when the law is unconstitutional. it’s amazing how you lefties “forget” about that requirement whenever the Constitution is protecting something you don’t like.

              1. Not when the law is unconstitutional.

                How is a non-discrimination law unconstitutional? No one on the side of CSS argued that the city policy was unconstitutional, just that the constitution requires that CSS should get an exemption from it. Follow the logic of the case more closely.

                1. Right to religious freedom, means you can’t force me to live to your beliefs, rather than mine

                  Right to freedom of association, which means I get to decide who I want to associate with, and you don’t get a vote in the matter.

                  What CSS argued was that it was unconstitutional for Philly to try to force CSS to act according to the beliefs of the thugs on the Philly City Council, and that the only way the law could BE Constitutional is if it didn’t apply to them.

                  You might want to try following the case more closely

            3. “since the placement of children for foster care should be based on factors that affect the ability of a couple to care for them, only”

              That’s true. But children need both a mother and a father. They need the diverse input from parents of both sexes.

              Since they’re not going to get that from a same-sex couple, by your own argument no gay couple should ever be allowed to adopt / foster children

              1. That’s true. But children need both a mother and a father. They need the diverse input from parents of both sexes.

                What do you base that on? What research do you have to back up that same sex couples, or single parents, for that matter can’t provide adequate foster homes? I said that criteria for evaluating potential foster parents should be based on reasoned analysis, rather than bigoted views. And, to be clear, I’m not talking about what family structures are better, but adequate, since a foster home at least has a chance for the child to develop deeper personal relationships and trust with the foster parents than in some group home.

                You have to show that a same sex couple inherently can’t provide adequate care. It would be better, on average, for foster parents to be high income, college educated people, but you don’t see these agencies baring working class high-school graduates from being foster parents. That’s because every couple should be evaluated on a wide variety of neutral criteria for the type of home that they can provide. CSS is making a blanket judgement that a same sex couple simply can’t provide even an adequate home. That has to be based on a reasoned analysis, not bigotry, whether it is bigotry based in their religion or otherwise, if they are going to do this under contract with a government that demands non-discrimination.

                1. “What do you base that on? What research do you have to back up that same sex couples, or single parents, for that matter can’t provide adequate foster homes?”

                  There haven’t been enough gay “parenting” homes to provide any reasonable data on the subject, and given the utter left wing dishonesty of modern American Academia, there’s not the slightest chance that any research finding that same sex couples are inferior to mixed sex couple would be allowed to be published.

                  But the literature on the failure of single sex parenting vs heterosexual married couple parenting is vast. If you’re really unaware of this, you desperately need to do some research, and learn something for yourself.

                  You might want to start with the effect on girls from growing up without a father. Or you can look at inner city crime rates to start to grasp the effect on boys from growing up without a father.

                  In any event, your comment denotes ignorance so vast that there’s really no point in debating you

              2. That’s true. But children need both a mother and a father. They need the diverse input from parents of both sexes.

                The problem with that as a defense of CSS is that CSS doesn’t believe that. From the opinion: “CSS does not object to certifying gay or lesbian individuals as single foster parents”. CSS’s objection is to unmarried couples (straight or gay), and to same sex married couples.

            4. For the record, I am not religious, but I know and care about people that are. And if I didn’t personally know and care about such people, I would still want to afford them equal rights and stand against those that would discriminate against them because of bigoted beliefs.

              it’s amazing how well that still works out.

              1. Again with the mocking that doesn’t address the issue.

                I know and care about religious people just like I know and care about LGBTQ+ people. But as they say, one person’s right to swing their fist ends at another person’s face. There is nothing bigoted toward the religious in denying them the right to discriminate against others in a bigoted fashion. That’s not how the word ‘bigotry’ even works.

                Bigotry is an “obstinate or unreasonable attachment to a belief, opinion, or faction;” especially “prejudice against a person or people on the basis of membership in a particular group” (Oxford). In my opinion, viewing a gay couple as unable to provide an adequate home for a foster child is bigotry because it is not based on any reasoned, objective criteria. In the case of the Catholic Church, it is purely a matter of religious dogma, and that is definitely not reasoned or objective. My opinion and opposition to their being allowed an exemption from non-discrimination law is reasoned and reasonable.

                1. Yep, your right to swing your fist ends at my face.

                  Which means your right to get services from MY business ends where it conflicts with my beliefs and desires.

                  Bigotry is an “obstinate or unreasonable attachment to a belief, opinion, or faction;”

                  Yes. Like your belief that Catholic opposition to homosexual behavior is “bigotry”, rather than a reasoned assessment.

                  Go read “And the Band Played On”. Consider the way that homosexual men used their political power to determinedly fight against any public health measure that might have slowed down the spread of the then 100% death sentence AIDS. A disease that mainly targeted them.

                  Contemplate what it is that would make people value anonymous blow jobs over their own lives.

                  Then consider that maybe the Catholic Church has good reason to preach against homosexuality

    2. Somehow, Roberts persuaded at least one of Kavanaugh or Barrett not to apply Tandon which would have markedly changed Free Exercise doctrine without explicitly discarding Smith.

      1. I think Barrett’s concurrence is the important opinion here. She’s obviously skeptical of Smith, but she’s also saying “you can’t just overturn Smith without being incredibly careful about the doctrine, because it’s really easy for exemption claims to spiral out of control”. I am almost sure that she is sincere about that, and Roberts, Kavanaugh, and Breyer have similar feelings.

        I think a lot of people who opine about this issue are very cavalier about doctrinal questions, just thinking about all the laws that people they sympathize with won’t have to obey. That same cavalierness attended the debate over RFRA, on both sides. (It’s not just conservatives thinking “oh great, we can argue our way out of gay rights laws” but also liberals thinking “we can argue our way out of drug laws”.)

        I have said this before, but exemptions from generally applicable laws are not some cavalier thing. They are extremely serious, sober business. First of all, they are a sort of “equal protection” violation (I don’t mean the actual constitutional provision, but the concept), because they mean that Person A has to obey a law and Person B doesn’t. Second, they are very easy to game- if you tell someone there’s a religious exemption, suddenly there’s all sorts of folks at the door telling you about their recently acquired religious beliefs. And third (and related to one), you can create situations of pretty severe backlash if people feel the laws don’t apply to a privileged class.

        So you want to be extremely careful about this and not just say that we are going to grant exemptions willy-nilly whenever someone lodges an objection.

        Barrett is calling for that sort of caution. She’s right.

        1. I agree with you. Barrett’s opinion is impressively thoughtful.

        2. I am having a difficult time squaring her caution in this case with the lack of it in Tandon.

          1. Maybe she thought about it more?

            One reason why all the shadow docket action of the last several years has been bad is because cases really do benefit from full briefing on a normal schedule.

            1. Oh, to be a fly on the wall to see how the Fulton opinion changed as the COVID shadow docket proceeded.

      2. ” which would have markedly changed Free Exercise doctrine without explicitly discarding Smith ”

        But for how long? Some people may be trying to establish authority that can survive more than the short or acute term.

    3. the adoption system might be forced by the First Amendment to allow discrimination against gay parents

      OMG! The First Amendment might stop the sacrifice of orphans to the Molech of Wokeness. Quell Horreur!

      Let me ask you a moral question. Which is worse: (1) tolerating some religious discimination against gay parents* or (2) forcing orphan children to suffer from lack of foster care?

      _____________
      *And the discrimination here was very mild. Any gay parents who wanted to adopt would simply be referred to one of the 20 odd other agencies in Philadelphia that would accept their application. Kind of like the gay couple who have to find another baker to bake their wedding cake.

      1. If gay parents are discriminated against in the foster or adoption system, that will decrease, not increase, the number of available good homes for children.

        Indeed, leaving aside the fact that the Church is being massively homophobic here (even if it thinks homosexuality is sinful, what does it have to do with taking care of a kid?), excluding gay couples would likely mean that the Church will prefer some less fit parents for children that could have gone to a gay couple. It’s just terrible adoption/foster care policy.

        1. The Will of the People changed, and so was reflected through their unelected judges rather than through their elected officials via democracy.

          Wait, what?

        2. The facts, as recited in the opinion, plainly contradict your view. The CSS never had a gay couple apply. If there were any, they likely went to one of the other 20-off agencies in the city.

          Dealing with orphans is a thankless, low-paying job. Which is why it is generally handled by private charitable organizations. Cutting out one of them, here a major one, because of hypothetical discrimination is the height of moral vanity and posturing. Much worse than the cake-baking cases, IMO.

          How about some gay organizations organize a foster-care agency? Or is that not have enough virtue-signalling to be worth it?

          1. I agree with you that the CSS had never turned away a gay couple. But that doesn’t mean that a system that allows this discrimination won’t, over time, decrease the likelihood that kids get placed with gay couples.

          2. ” The CSS never had a gay couple apply. If there were any, they likely went to one of the other 20-off agencies in the city.”

            The more relevant question is what the other 20 agencies would do if a clearly religious couple were to apply with them? (E.g. either a Catholic woman with her Rosary beads in hand, or an Orthodox Jewish couple in identifiable garb.) Would they refer them to CSS or not place them?

            1. The other thing is that if this was Philadelphia, the majority of these children likely were Black.

              White parents adopting a Black child is quite controversial in the Black community — while there aren’t enough Black families willing/able to do it, it’s felt that a Black child should be raised by Black parents. It’s quite similar to the issue about gay parents — and that becomes Title VI if I have my Roman numerals correct.

              1. Setting aside who exactly elected Dr. Ed as spokesperson for the Black community, this case wasn’t about adoption.

            2. The more relevant question is what the other 20 agencies would do if a clearly religious couple were to apply with them? (E.g. either a Catholic woman with her Rosary beads in hand, or an Orthodox Jewish couple in identifiable garb.) Would they refer them to CSS or not place them?

              If my religion told me that devout Catholics (Rosary beads in hand) couldn’t be acceptable parents, would Justice Alito have been fine with me refusing to serve them myself as long as I referred them to CSS or another agency that would? When does this nonsense of appealing to religion to get out of non-discrimination law end?

        3. “good homes ”

          Maybe they aren’t really “good homes”.

          Children need a father and a mother.

          1. Nope, the nuclear family is a modern American invention made possible by public health advances and affordable 3/1 suburban homes built quickly. Trump rejected the nuclear family with one daughter being raised across the country by her mother and Trump’s youngest son is raised with the help of Melania’s parents. The Obama household included Michelle’s mother to help raise their daughters.

            1. With the exception of a Gold Star, my family has consisted of nuclear families since the 1600s…

              Neither Trump nor NoBama are normal — normal people don’t run for President…

              1. Early death was much more commonplace prior to 1945 so having a living mother and father was a luxury. Thomas Jefferson’s daughters were raised by their mother and Washington’s step sons weren’t his heirs. Andrew Jackson and his wife were given one twin by her sister because they couldn’t have children…parents just gave away a perfectly good white baby because the nuclear family wasn’t seen as distinguishable from the extended family.

                1. weren’t …I assume everyone here knows Jefferson’s wife died in childbirth.

                2. In all those cases, the key critical component was a mother and a father

                  Not a mother and a mother, or a father and a father

          2. Interesting that the agency in question, CSS, is willing to place foster children in single-parent homes even when the parent is gay. I’m sure that helped their case.

        4. If gay parents are discriminated against in the foster or adoption system, that will decrease, not increase, the number of available good homes for children.

          Decrease compared to what? Compared to a hypothetical in which no agency discriminates? Maybe — but maybe not, since that would only lower the number if the gay parents don’t turn to another agency — but that’s not the right comparator. The right comparator is one in which some agencies close altogether rather than comply with the rule.

          excluding gay couples would likely mean that the Church will prefer some less fit parents for children that could have gone to a gay couple.

          That’s not how it works. The CSS isn’t responsible for ranking potential adoptive parents.

          1. The more interesting question is how many of these children were already in state custody. (Or whatever PA law calls it when the child protective folk take a child.)

            Likewise, how many of these children were teenagers — which are damn hard to place. Even White ones…

        5. If Catholic Foster Services are discriminated against, that will lose out on all the foster parents that go through them

          Which is a hell of a lot more than “gay parents” out there

    4. Here’s the thing: The free exercise clause is actually found in the Constitution. There isn’t any clause of the Constitution which prohibits private discrimination.

      So, really, the free exercise clause SHOULD be a broad permission to disobey anti-discrimination laws. Constitutional rights should always trump optional policies which are, at most, constitutionally permitted.

      You can say that allowing discrimination against gay parents is a horrible, but it’s not constitutionally a horrible.

      1. Not really. Just like the 2A the 1A is about preventing tyranny and perpetuating the republic. So the religious clauses are about strengthening religious organizations in order to create power structures that could resist tyranny. So one of the first actions a tyrant would take would be to take over the state religion and consolidate power. If a country has a robust religious market place then that makes it much more difficult for a tyrant to take over that particular power structure…so it’s just like the 2A in which robust state militias were envisioned as a bulwark against tyranny.

      2. One thing you ignore is that lots of bigots dress up their bigotry as a religious command.

        1. That’s how I see it. So the question is really—-under what circumstances can religious individuals discriminate against other Americans?

          1. I gather “religious individuals” = people who claim to be religious (without regard to whether they treat their ostensible religious requirements as a buffet line).

            1. Honestly I’m not anti-religion…it is just something I don’t have an opinion about one way or the other because it doesn’t interest me. That said, objectively speaking Christianity is the best religion…and Jesus said “render unto Caesar what is Caesar’s” and marriage is a civil institution in America…and weddings are dumb and gay and I would advise everyone to get a prenup.

        2. Hop you’re looking in a mirror on that one, bigot

      3. There isn’t any clause of the Constitution which prohibits private discrimination.

        CSS was operating under contract with the government. The government is free to set up its own requirements on how those contracts should operate, neutrally applied. And it has constitutional responsibilities to treat people equally itself, in any case. It can certainly require the same of those that work under its contracts.

    5. What has never really been addressed is the extent to which the expanded antidiscrimination laws (i.e. beyond race and biological sex) serve to violate the Establishment Clause.

      1. What has never really been addressed is the extent to which the expanded antidiscrimination laws (i.e. beyond race and biological sex) serve to violate the Establishment Clause.

        Bwahaha! That was good. I needed a laugh.

        By the way, you forgot laws against discriminating based on religion, national origin, and age. What religion do you think bans discriminating based on religion, such that adopting that as law would violate the Establishment Clause? LOL

    6. You are such a moron

      There’s over 20 agencies that vet foster parents for the City of Philly

      All but one of them take gay couples.

      If a gay couple is so stupid they can’t figure out how to apply to one of the other agencies, they’ve already disqualified themselves on those grounds.

      This was about the thugs of the Left wanting to bully Catholics into pretending the same sex “marriages” are real and valuable.

      That’s the “horrible” that the Supreme Court allowed: Catholics are still allowed to disagree with you

      Boo hoo

      1. Interesting question: Did CSS accept applications from *unmarried* heterosexual couples?

        Something tells me that they didn’t — just guessing here…

        1. Nope. They don’t accept from unmarried couple, or from same sex “married” couples.

          1. But they do accept applications from single parents without getting hung up over that person’s sexual orientation, it appears.

            1. Because the agency understands the certification of prospective foster families to be an endorsement of their relationships, it will not certify un-married couples—regardless of their sexual orientation—or same-sex married couples. CSS does not object to certifying gay or lesbian individuals as single foster parents or to placing gay and lesbian children.

    7. It’s interesting that Alito includes a bunch of theoretical horribles (Congress might re-pass the Volstead Act and not exempt sacramental wine!)

      You skipped over two very non-theoretical horribles: (1) a state or municipality bans make circumcision (actually proposed in San Francisco) and (2) a state bans religious animal slaughter (which is today the law in several European countries, and was upheld by the European Court of Justice.

      So in your view, those would be Constitutional?

      1. Off the top of my head, banning circumcision would be permissible if it wasn’t motivated by animus towards religion (see Masterpiece Cakeshop), and a ban on religious slaughter would obviously not be permissible. Alito didn’t say “religious,” but even a general ban that is gerrymandered towards religious practice doesn’t pass muster (see Lukumi).

  4. No way a 9-0 decision is a win for freedom and the Free Exercise rights.

    I suspect it is merely a delay until a more leftist court can further limit human rights.

    1. I’m glad you came here.

      Please, take a seat.

      Your addiction to political drama is way out of control.

      We fear you’re becoming unable to feel anything unless you strain to find some speculative future victimization by the left.

      Please, it’s not to late to just log off.

      1. You do realize that the Masterpiece Cakeshop guy is still being sued — and losing — in Colorado courts, even after his “win” from SCOTUS?

        1. Yes, I thought there would be a post on that. Maybe it’s coming.

        2. The only reason he won was that the Colorado Civil Rights commission was openly displaying anti-religious animus. That was the basis he won on, not that the law itself violated religious liberty.

          It was the narrowest possible win, with, essentially, directions for future plaintiffs to be less open about their motives.

          1. What I wish his team had emphasized more was the Free Speech aspects of the case. I thought that was the stronger argument. And it is even better in his new case (the transgender who wanted him to bake a cake that was blue inside and pink outside.)

            1. And on that note, here is a simply syllogism:

              If some activity may not be banned by a State because of the Free Speech Clause, the State cannot force a private party to engage in that activity because of the Free Speech Clause.

              Anyone disagree?

              1. The Masterpiece Cake case is about false advertising and definitions of words—he advertised he bakes custom wedding cakes and so he must bake custom wedding cakes. The baker doesn’t get to define words however he please because that would undermine commerce which the Framers were also concerned with.

                1. I agree that it would have been false advertising if he had advertised that he sold custom wedding cakes to anybody who came in the door. He didn’t.

                2. Gee. Odd that NO ONE in the case raised issue of false advertising.

                  And acc. to that, if he had added appropriate disclaimers, then he’d be off the hook. All he has to do is advertise “I bake customer cakes, except those that advocate a message I find repugnant.” Bye-bye false-advertising claim.

                  (BTW, he baked all kinds of custom cakes, not just wedding cakes. And rejected other cakes for similar reasons, again not wedding cakes.)

                  1. A custom cake that comes to mind would be for a group of good Christian ladies having a bachelorette party…so I would bet cakes in the shape of a penis are very common at Christian bachelorette parties. So a custom bakery could say that cakes that feature obscene depictions, even if sought by good Christians, can be refused. But a gay wedding isn’t covered by that qualifier and I don’t think there is any way to advertise “custom wedding cakes” but deny baking for gay weddings when marriage is a civil institution in America and not a religious institution.

                    1. You are babbling. I get it, you don’t like Chrisianity. Too bad for you, the Constitution does not let you enact your prejudices into law.

                    2. ^^^would allow Americans in ISIS to slaughter infidels as free exercise of their religion.

                    3. Well, musically speaking, a thing’s a phallic symbol if it’s longer than it’s wide. So I suppose a black forest tort would qualify?

                    4. Well Sebastian, that escalated quickly … fool.

                    5. That’s my schtick—you say “religion”…I say “Satanism”. You say “wow, look at those Iraqis voting…so wonderful”…I say “ACB got hard nips every time an Iraqi baby was killed during shock and awe” (she’s a Bush loyalist and helped him steal the 2000 election) 😉

                3. Can I sue Ford because their custom options don’t include purple paint?

                  1. Go for it.

  5. Not that this would ever happen, but…..What if an employee cites a religious objection to obtaining a covid-19 vaccine, and the employer requires a covid-19 vaccination as a condition of employment, and allows for medical exceptions.

    Does the reasoning in Fulton now apply in that context?

    1. No because thats an employer. Not a government. Private companies can do whatever they want.

      And for the civil rights act, as far as I can tell, the current legal regime is even less restrictive on what employers can do than what governments can do under Smith.

      1. Good point. My comment might nonetheless apply to public employees.

        1. The Mass State Police refused and Baker dropped it.

    2. It likely would if the employer decides on an individual basis which medical exemptions are accepted. On the other hand, if the employer categorically exempts named medical exemptions, this case is inapt. More interestingly would be categorically accepting a certification from a doctor where the certification was based on an individual assessment.

      1. Right…I am a public transit worker, and I don’t want a covid-19 vaccine. The law allows for a single physician to issue a medical exemption. Then you run afoul of Fulton and have a problem. Is that right?

        Josh R….I think Smith is on life support. Boy, Justice Alito sure sounds ready (I skimmed his opinion) to ditch Smith and it looks like he has 2-3 others onboard. He doesn’t have a lot of time to wait for the right case to overturn Smith. One other thing, some of the points in his opinion mirror his comments to the Federalist Society last year.

        1. I don’t know whether a “note from your doctor” would be considered a categorical or individualized exemption.

          As others have pointed out in this thread, while Barrett’s concurrence supports reversing Smith, her questioning of what to replace with is far from where Alito is.

    3. Dueling religious claims is something the Congregation Of Exalted Reasoning has been pondering for some time.

      A ‘heads we win, tails you lose’ standard favoring religion-based claims seems unlikely to endure — if only because such a standard will attract many persons and entities eager to wield such a sword and shield — particularly in a society in which the influence and popularity of organized religion are declining rapidly.

  6. Professor, please re-read this sentence:

    “In Employment Division v. Smith (1990), the Court (in an opinion by Justice Scalia), held that no such exemptions from neutral, generally applicable government actions are generally not constitutionally required.”

    A double negative here?

    1. Yes, a double negative. And a conflict of tenses, too! It’s an ungrammatical twofer.

      1. Well, Volokh is a descriptivist — i.e., a linguistic anarchist. (I kid, I kid! No angry emails, please.)

      2. Old joke.

        Linguistics Professor: Many languages use a double negative as a postive. Others use it as a strong negative. But no language uses a double positive as a negative.

        Student: Yeah-yeah.

        1. LOL…that was funny.

  7. Alito had a great smackdown:

    When a newspaper publicized CSS’s policy, the City barred CSS from continuing its foster care work. 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. By ousting CSS, the City eliminated one of its major sources of foster homes.

    Nothing illustrates the moral bankruptcy of wokeness than making it harder for orphans to receive care.

    The most interesting opinion, IMO, was Barrett’s. I dub it the Goldilocks opinion. She clearly thinks Smith goes too far in one direction, but adopting a RFRA-like rule into the Constitution goes too far in the other direction. She is looking for a rule that is “just right.”
    A view that I am sympathetic to.
    We will see where this goes in the future.

    1. Nothing illustrates the moral bankruptcy of wokeness than making it harder for orphans to receive care.

      You understand that all of this got started because CSS’s policy rejects perfectly good foster parents, right?

      1. I think you meant “Refers to other agencies” rather than “Rejects”.

        1. But, think of the rejection they felt after deliberately seeking CSS out in order to get rejected! It was crushing to get the rejection they’d gone out of their way to experience.

          1. It’s like the lawyers who specifically seek out a specific Christian baker in Colorado in order have him bake a transgender cake….

          2. “It was crushing to get the rejection they’d gone out of their way to experience.”

            And to avoid that crushing feeling, we can sacrifice the well-being of hundreds of vulnerable children. Ain’t wokeness grand?

      2. You understand that the ONLY result of the City’s policy was to make it hard on orphaned children to get foster care, correct? And that those “perfectly good” gay parents who wanted to participate in foster care had 20 other agencies who would process their applications, correct?

        The complete lack of empirical curiosity is another handicap of leftist thinking. As a practical matter, the City’s policy did far more harm to would-be foster children than the CSS’s, if the latter did any. That they went forward anyway simply illustrates their own moral deficiencies.

  8. As someone who is conservative and religious, but has also worked as an attorney for the municipal government, I think the Barrett take-it-slow approach is proper. (I probably wouldn’t have thought this before my experience representing a local government, but that certainly gave me a new appreciation for the complexities of the issue.) Here’s why:

    Not infrequently, we would have individuals defending against the enforcement of fairly routine laws against them, bye creating a religion of one or of a small group, that just happened to have as it central tenets the exact conduct they we’re being fined for violating. Laws against marijuans or heroin sales? They’d create their own church where MJ or heroin were the sacraments, and the buyers were classified as faith adherents who were donating to the church (and given drugs to take home to use as a sacrament), not buying drugs. Enforcement of prostitution or various types of zoning laws? A new religion would be created with a central tenet of the provision of sex with the Johns happening to be classified as adherents who would donate to the church of one (the prostitute, or the pimping company). Or a religion where a certain type of architectural feature or multi-unit housing development that violated a zoning law was a tenet of a previously-unknown religion.

    While many of these defenses were raised by pro se parties, others were raised by attorneys looking to set up a claim under RLUIPA or the 1A if Smith is overruled.

    And since courts are ill-equipped, or in some cases prohibited, from saying one religion is “real“ and others are made up, or to test the sincerity of the religious faith (unless there was some express evidence of fraudulent intent, I’m not sure how one would persuasively prove that these people did not believe what they were saying, without opening up other more established religions to invasive testing if their beliefs by the courts).

    So you can see the issue here. While I’m sure there are some people who would be happy with every law being invalidated in its application to anyone who claimed a religious objection, no matter how convenient, I have serious doubts how that would work in practice.

    So I will be very interested in how Barrett and Kavanaugh try to thread this needle, if they eventually decide to do so.

    (Sorry for any typos. Dictated post and I am too lazy to go back and proofread.)

    1. “Or a religion where a certain type of architectural feature or multi-unit housing development that violated a zoning law was a tenet of a previously-unknown religion.”

      Well, to use this example, there are a number of land uses cases from my old hometown of Teaneck and surrounding towns (surrounding towns mainly) where Orthodox Jews move in, the council doesn’t want them there, they pass (or use) a zoning law that doesn’t allow for high density apartments which the Orthodox usually live in or come up with some way of banning certain neighborhood features they require.

      And in my view, the Jews ought to have the right to live in these areas free of councils making it very difficult. Overruling Smith helps with that, and I think that’s a good thing.

      But I take your point, it is a difficult thread to needle. But I dont think overruling Smith necessarily makes impossible to thread it.

      1. A ban on high density housing has less sinister explanations. In my town a Jewish apartment building would be treated with almost the same hostility as a black, Hispanic, or poor white folks’ apartment building.

    2. ‘Do not establish a standard you are unwilling to see wielded by the Congregation Of Exalted Reason’ seems a reasonable approach.
      — Rev. Arthur Libertarian Kirkland, Congregation Of Exalted Reason

      The Congregation eagerly awaits legal enforcement of the Congregation’s magnificent sacraments and fundamental teachings.

      1. I will screen shot this so I can always remember the date and time of my first agreement with the Very Reverend Arthur L. Kirkland.
        Cheers!

        1. I commend your perspicacity.

          Some of these conservatives seem unable to perceive the natural, predictable, reasonable, desirable consequences of their current position(s) on special privilege.

      2. “The Congregation eagerly awaits legal enforcement of the Congregation’s magnificent sacraments and fundamental teachings.”

        Then I guess “the Congregation” are pathetic morons.

        The beliefs of the Catholic Church are not being forced on any of the other agencies. it’s just simply the case that the religious lunatics running Philly don’t get to force their beliefs on teh Catholics.

        So, Rev, what do your psycho “parishioners” want to do, have anal sex on the alter?

        Knock yourselves out

    3. “Laws against marijuans or heroin sales? They’d create their own church where MJ or heroin were the sacraments”

      Oh, you mean like peyote using Indians? IIRC that was quite the cause celeb among the Left back in the day.

      Well, once you’ve decided that “we need to protect that person’s drug use”, you rally have made it hard to justify going after someone else’s.

      For centuries we relied on people having common sense, and local governments not going nuts. but since the Left is hard core nuts, that doesn’t work any more

  9. I think this case is a liberal win, despite the outcome.

    1. The city rules authorize the commissioner to provide exceptions at the commissioner’s sole discretion.

    2. Smith itself said that a law that gives administrators sole discretion to make exceptions lacks general applicability and is therefore subject to strict scrutiny. As the court in this case noted, this means there is no need to decide when a law lacks general applicability because a law with completely discretionary exceptions fails by any standard.

    3. The court also said that the ordinance does not pass strict scrutiny. But importantly, they said that the existence of the exceptions provision with unfettered discretion represented a government admission that the interest involves were not sufficiently important. If they were inportant, they would be important enough not to allow exceptions for any reason or no reason.

    4. As a result, the outcome here is very very similar to Masterpiece Cakeshop. Fulton wins. But only because Philadelphia did somethinf stupid which a well-advised government entity will now never repeat. All Philadelphia has to do is amend its rules to remove the provision for exceptions with unfettered discretion, and it will win. Moreover, the majority opinion contains dicta strongly suggesting that absent the provision for discretionary exceptions, an ordinance of this nature would not only pass muster under Smith, it would pass muster under heightened scrutiny even if Smith were ever overruled.

    5. Kavanaugh and Barett joined the majority opinion, and Barrett wrote separately in opinion mostly joined not just by Kavanaugh but by Breyer as well (Breyer did not join the paragraph suggesting Smith should be reconsidered). All this strongly suggests that while Kavanaugh and Breyer might someday join Gorsuch, Alito, and Thomas and overrule Smith, they would nonetheless be likely to join Roberts, Kagan, Sottomeyor, and Breyer in upholding sexual orientation discrimination ordinances against Free Exercise Clause challenges under whatever heightened scrutiny regime replaces Smith.

    That’s a big liberal win. Like hearings, ordinances just need a little tweaking to avoid doing something stupid (and completely unnecessary), and they pass constitutional muster.

    1. I agree with this part: As a result, the outcome here is very very similar to Masterpiece Cakeshop. Fulton wins. But only because Philadelphia did something stupid which a well-advised government entity will now never repeat.

      See Mayor Jim Kenney (nicknamed Drunky McMayor). He was the driving force behind this entire case. It was petty, and stupid.

      1. ” It was petty, and stupid.”

        No, it was morally bankrupt. Orphaned children were made to suffer so the Mayor could virtue signal. He should be the target of opprobrium, but he won’t be.

        1. He got more shit for driving to MD to eat dinner outdoors in a restaurant during the covid craziness than his morally bankrupt actions here.

    2. Sorry, while Kavanagh and Barrett might someday join Gorsuch, Alito, and Thomas and overrule Smith.

      It looks like the Trump appointments have led to a 5-4 majority inclined to reconsider Smith, as all 3 have come out in favor of reconsideration, although Barrett and Kavanaugh more reluctantly than Gorsuch. But only 3 justices – only 1 of the Trump appointees – appear prepared to rule that in a post-Smith regime, sexual orientation discrimination laws won’t pass the scrutiny level that replaces it.

      1. So, again, the principle that the American people had refused to put in the Constitution trumps the principle that actually IS in the Constitution, because the judiciary think it more important.

    3. “I think this case is a liberal win”

      Of course, otherwise Kagan, Breyer and the Unwise Latina would not have joined it.

    4. You’re wrong. Here’s why

      1: The lower court ruled 3-0 against CSS. SCOTUS ruled 9-0 against Philly

      This was a benchslap to the lower courts

      2: 9-0: Foster / Adoption services are NOT “public accommodations” subject to such anti-discrimination legislation.

      3: Yes, Philly can change their rules and remove the discretion. And CSS will appeal for an injunction, which they will get. Several years later, it will finally get to SCOTUS, and by 5-4, maybe 6-3, maybe 9-0, Philly will lose again.

      Because no one sane, and even an insane lefty like Sotomayor is to the Right on this, no one sane believes that CSS shoudl be forced to validate gay parents.

      4: There were 3 Justices who said “we’re ready to nuke Smith and replace it with strict scrutiny. There were 2 more who said “we’re ready to nuke Smith, this just isn’t the case for it”. So, which Appeals Court is filled with such idiots that they will send to SCOTUS a case where Smith needs to be overturned?

      Prediction: Masterpiece Cakeshop will not make it to SCOTUS again, because the Appeals Court will rule in Jack Phillip’s favor, and the whiners will suck it up and not appeal.

      This ruling was a line in the sand. It said “dear lower courts, if you cross this line, Smith is dead”.

      That’s not a “win” for the Left

  10. It seems the Barrett 3 are open to overruling Smith, but don’t agree with the Alito 3 that strict scrutiny should replace Smith. If the two groups can agree on what would be the post-Smith standard, Smith is toast.

    1. When Smith came out, I thought it was wrong, but came around when I tried to figure out an intelligible principle from the prior cases. I could not find one other than “cute, non-threatening religions get accommodations” or “it’s no big deal, what the hell?”

    2. “If the two groups can agree on what would be the post-Smith standard, Smith is toast.”

      It is delightful to contemplate the menu an enlarged Supreme Court might serve on Smith toast.

      1. An packed court would END the court…

        1. America has survived Court enlargement . . . and thrived. Why would this edition differ?

          What is more likely to “end” the Court is the work of a fading group of extremists attempting to use a combination of luck and knifefight tactics to try to thwart the will of most Americans — with respect to issues such as bigotry, religion, health care, guns, abortion, and the like — for more than a brief period.

    3. I think it’s more likely that the Barrett 3 are warning the lower courts that either THEY stop trampling religious rights, or else SCOTUS will do it for them

      And they won’t like the outcome then

  11. …and the signals it sends for Free Exercise Clause litigation going forward…

    What signals are those?

    1. That religious nuts should bring more cases.

      1. The “religious nuts” are the Lefties trying to force their beliefs on the rest of us

        What the SC did was encourage people to go to war against the religious nuts, secure in the knowledge that SCOTUS has their backs

  12. ” [The majority] decision might as well be written on the dissolving paper sold in magic shops. ”

    It seems odd that those advocating special privilege for bigotry rooted in adult-onset superstition would advance such phrasing . . . until one recognizes the likelihood of lack of self-awareness.

    1. Being able to do what you want isn’t a special privilege. Being able to force other people to do what you want is.

      So, it’s not a special privilege to get to pick who you will and won’t sell a cake to, on any basis whatsoever. It’s a special privilege to be able to force somebody to sell you a cake.

      1. The issue is dodging generally applicable laws.

        1. Freedom always comes across as “dodging laws” to people who enact laws in order to take freedom away.

          1. That reasoning seems unsound.

            Now do ‘the Congregation of Exalted Reason’ considers abortion before 18 weeks a sacrament; forbids Congregants to transact with or hire bigots (as defined by Congregation teaching); requires Congregants to forbid all firearms on property owned by a Congregant (even if leased to another, or operated as a business open to the public); believes nearly all recreational drugs are spiritual, transcendent gifts every Congregant must use if the Congregant perceives a calling to do so; and forbids a Congregant to provide to any person or entity any special privilege based on a claim of organized religion.

          2. Freedom always comes across as “dodging laws” to people who enact laws in order to take freedom away.

            Freedom has never included the right to cause harm to others. Laws that aim to prevent harm or punish those that cause harm are not laws aimed at taking freedom away.

        2. The issue is “generally applicable laws” that should never have been written, because they are a violation of our individual freedom

          But Rev doesn’t believe in individual freedom, because people with that do things he doesn’t like

          The Rev believes his side should get to define what is true and proper and correct, and everyone else must follow it

          (Note: I know one of you wankers is going to want to bring up big tech and censorship at this point. I have absolutely no problem with publishers getting to chose what they will and won’t publish. What I have a huge problem with is publishers who call themselves “tech companies”, and because of that still get to publish only what they want, but are NOT subject to the libel, etc. laws that every other publisher is subject to.

          You can have Section 230 protection, or you can be a publisher. But no one, ever, should have both for the same content)

          1. I have absolutely no problem with publishers getting to chose what they will and won’t publish. What I have a huge problem with is publishers who call themselves “tech companies”, and because of that still get to publish only what they want, but are NOT subject to the libel, etc. laws that every other publisher is subject to.

            The fundamental difference between publishing something and providing a platform for user-generated content is what you need to understand in regards to Section 230 and this broader debate. A publisher that would be subject to libel claims inherently has full editorial control over what they publish. What is said or written is reviewed prior to publication and distribution. Any online platform, Facebook, Twitter, and comment sections like this one, are not like that at all. A platform that lets people post in real time, without prior editing or moderation, is not a publisher. Moderating content after the fact is inherently different than being a publisher.

            Section 230 was enacted to encourage forums and platforms to moderate user content so that each community of users could enjoy that shared space. Each community could decide for itself what kind of content would be too “obscene” or “otherwise objectionable” to be allowed to persist as they seek what they want from the community. Some communities might want to be very free wheeling, letting people swear, talk about butt sex (consenting adults), alien abductions, or whatever floats their boats. Other communities might want things to be suitable for kids and bar people from using bad words. Some communities might want to be open to talking about any topic at all, others might want them to be limited to a particular topic and delete posts that aren’t relevant to that topic.

            This shouldn’t be controversial. Each user is voluntarily joining that community by reading or posting to that platform, and they are free to leave if they don’t like that community’s rules. Even in cases where a platform is inconsistently applying their user agreements, or violating their own procedures spelled out in them as they moderate content, each user harmed would only have as much recourse as what they were contracting to be able to do on the platform. Twitter is free. Twitter is not guaranteeing to a user a certain number of views for each tweet they make.

            The only legitimate issue here is the question of whether some of these platforms are so large and their use widespread enough that they would be monopolistic. If they are engaging in anti-competitive behavior toward rival platforms, that would be an anti-trust concern, for instance.

            Ending Section 230 for these platforms would eliminate any potential middle ground. If moderating user posts at all makes them “publishers” that would be liable for what their users post, then they will either get even more heavy-handed in an effort to avoid that liability, or they will abandon all moderation.

            You might say, “Good! Freedom reigns!” But, that isn’t what most people want from these platforms. They don’t want a place where anyone can post just about anything and everything at any time. They want to read what they are interested in, they want it to be safe for their kids, and they don’t want every nutjob in the world to be filling up their online space with garbage. You would be eliminating the ability of each platform to tailor its service to specific communities of people. At that point, there wouldn’t be any need for a competitor to Twitter, because any competitor would be doing exactly the same thing.

            1. “The fundamental difference between publishing something and providing a platform for user-generated content is what you need to understand in regards to Section 230 and this broader debate.”

              Yes. The problem is, you are the one who’s failing to understand.

              The defense of Twitter censoring conservatives is that “Twitter has a First Amendment right to decide who gets to use their platform.” But that is only true if what is written on Twitter’s platform is “in Twitter’s voice.”

              In Pruneyard SCOTUS established that shopping areas / malls could NOT ban people who wanted to go there and talk to others, including to make political pitches. Because it was “clear” that those people were speaking with their own voice, not with the Pruneyard’s voice, and therefore the Pruneyard didn’t have the right to stop them.

              What is true for a mall is even MORE true for Twitter, Facebook, YouTube, etc. What people say there is clearly “not Twitter’s voice”. Which means that Twitter should no more be allowed to censor people than the Pruneyard was.

              So, if Twitter does have a right to censor those people, its’ because Twitter is NOT a “mall”, it’s a publisher.

              And that means every single thing they chose to publish is their voice, and therefore their fault.

              If they chose to allow people to speak in Twitter’s voice without Twitter pre-approving what they say, that’s Twitter’s choice. But that doesn’t / shouldn’t free Twitter from their responsibility for the things they chose to publish.

              This isn’t “this area is for cat talks. if you talk about dogs, or politics, we’ll kick you out and delete your posts.” This is “you may only say things that we approve of, and if you say something we don’t approve of, we’ll delete it and ban you.”

              Well, Twitter, what you “approved of” was libel. You chose to publish it. You can face the lawsuit for it.

              Napster could only exist so long as the Feds gave them the huge subsidy of not enforcing copyright law against them. Twitter, FB, etc et al can only exist in their current form so long as the Feds give them the massive subsidy of not having libel law enforced against them.

              Neither situation is / was legitimate. This one should end, the same way Napster ended

              1. You neglect to note that Pruneyard (1980) was not about the 1st Amendment. SCOTUS had already held in Lloyd Corp. v. Tanner (1972) that the 1st Amendment did not require private property owners to extend free speech rights to everyone on their property. SCOTUS held that states could give people greater protections than the Constitution required, as long as such enhanced protections did not conflict with other rights that the Constitution protected. Thus, in Pruneyard, SCOTUS held that it was not a “taking” of the Pruneyard mall’s property when the California Supreme Court’s interpretation of California’s constitutionit found that California’s free speech clause required the mall to allow students to seek signatures for a petition that they wanted to send to the UN. That meant that CA’s greater free speech protections did not overly burden Pruneyard’s private property rights, and thus were allowed.

                Perhaps federal courts, with cases eventually reaching SCOTUS, will allow individual states to extend broader free speech protections on private online platforms, similar to how California’s courts interpret its constitution. But you are wrong in your assertions that SCOTUS precedent is already there to require private property owners to allow others free speech on their property. As far as I can tell, Lloyd is still the precedent on this issue. One issue in that case was that the people denied access to the Lloyd Corp. property were still able to hand out their leaflets on the public streets and sidewalks surrounding the private property. In other words, they weren’t being denied their ability to speak, just the ability to speak on that particular private property.

                And that is the core issue here. Twitter, Facebook, YouTube, etc., are all private companies and their services are hosted on computers that either they own or are privately owned by companies with which they have contracts, with the data transmitted over privately owned infrastructure to users with their own privately owned devices that use private businesses to connect them to these services that they choose freely. Being “deplatformed” from Twitter does not mean that someone cannot say what they want to say. It just means that they can’t say it on Twitter. That brings it back to what I had said above. If people are truly being silenced everywhere, then that is what you have to show. If people are just being silenced on Twitter, then don’t use Twitter.

                So, if Twitter does have a right to censor those people, its’ because Twitter is NOT a “mall”, it’s a publisher.

                And that means every single thing they chose to publish is their voice, and therefore their fault.

                You are still making a big jump equating moderating content to publishing content without showing why that is so. For one thing, having just looked, at 5:21 am EDT, there had been over 180,000,000 tweets sent today. A typical day gets half a billion tweets. Twitter simply cannot possibly find every single tweet where some user may have defamed someone and then take it down. Taking down some tweets that it doesn’t like doesn’t mean that it thus gave editorial approval to every tweet that it leaves up. It is ridiculous to say that Twitter is a “publisher” that should be exposed to lawsuits for what users post as long as it does any moderating at all. It isn’t giving editorial approval to half a billion tweets a day because it takes down thousands of them. Moderating an online platform with millions of users is never going to be equivalent to publishing for this reason alone.

                1. Wow, a comment that actually responds to what I wrote, with something that isn’t total bullshit. Yay you! (No, this is not me being snide or sarcastic towards you)

                  >>You neglect to note that Pruneyard (1980) was not about the 1st Amendment. SCOTUS had already held in Lloyd Corp. v. Tanner (1972) that the 1st Amendment did not require private property owners to extend free speech rights to everyone on their property. SCOTUS held that states could give people greater protections than the Constitution required, as long as such enhanced protections did not conflict with other rights that the Constitution protected. Thus, in Pruneyard, SCOTUS held that it was not a “taking” of the Pruneyard mall’s property when the California Supreme Court’s interpretation of California’s constitutionit found that California’s free speech clause required the mall to allow students to seek signatures for a petition that they wanted to send to the UN. That meant that CA’s greater free speech protections did not overly burden Pruneyard’s private property rights, and thus were allowed.
                  <<

                  But that also means that private property owners do NOT have a 1st Amendment right not to provide a place where other people can speak their views. As applied to this case, that means that Twitter does NOT have a 1st Amendment right not to carry views it opposes, and both Federal and State law can force it to do so.

                  So, for example, the recent FL law passed by DeSantis blocking Twitter's ability to ban / block people is entirely Constitutional.

                  No?

                2. “Being “deplatformed” from Twitter does not mean that someone cannot say what they want to say. It just means that they can’t say it on Twitter.”

                  Ah, but that’s not on point to Lloyd, by your own description of the case:

                  “One issue in that case was that the people denied access to the Lloyd Corp. property were still able to hand out their leaflets on the public streets and sidewalks surrounding the private property. In other words, they weren’t being denied their ability to speak, just the ability to speak on that particular private property.”

                  In Lloyd, the people handing out the leaflets still had access to all the people going to and from Lloyd Corp. property. If you’re not on Twitter, you have no access to the people going to / from there.

                  No?

                  1. In Lloyd, the people handing out the leaflets still had access to all the people going to and from Lloyd Corp. property. If you’re not on Twitter, you have no access to the people going to / from there.

                    No?

                    No. It isn’t like people that use Twitter only exist on Twitter. They can use other platforms as well.

                    I don’t know how the Lloyd Corp. Property was set up, but it could be that they had a parking lot. People handing out leaflets in the areas surrounding the property wouldn’t have had as much access to people parking on Lloyd Corp. as they would if they were allowed to hand out their leaflets while on Lloyd’s property. People driving onto the property could see those handing out leaflets on the surrounding streets and sidewalks, but the leafleteers (if that’s a word) wouldn’t have had the same ability to talk to them.

                    1. “No. It isn’t like people that use Twitter only exist on Twitter. They can use other platforms as well. ”

                      And people coming to Lloyd Corp. Property don’t live there, so I guess you can go to their homes. Except that’s entirely different from “they could be on public streets and sidewalks around LCP”.

                      People going ot a parking lot have to drive on public streets to do so. Where protesters can have signs that the drivers will see while they’re driving.

                      The point of deplatforming is to drive people “out of view”, where their arguments can’t be seen or heard, even, or is it especially, by those who want to see / hear / read their arguments.

                      Which was not a power LC was capable of. But is a power that FB, Twitter, and Google do have, and shouldn’t

                3. “You are still making a big jump equating moderating content to publishing content without showing why that is so.”

                  The defense of Twitter’s censoring of content is that what is published on Twitter is “Twitter’s voice”, and they have a right to decide what that “voice” will be.

                  But that’s publishing. “Speaking with your voice” is what publishing is all about.

                  “Moderating” would be “this is a cat forum, and you’re talking about dogs”. Or “we don’t allow the use of the FCC’s banned words, and you used one”.

                  it’s not “we don’t like your opinion, so we’re banning it.”
                  And when your “moderation” entirely inconsistent, and follows no rules other than “I like this, I don’t like that”, then it’s no longer “moderation”, it’s “publishing.”

                  I sincerely hope you’re not going to try to pretend that Twitter actually has so objective, non-political, rules that their “moderation” follows.

                  “Twitter simply cannot possibly find every single tweet where some user may have defamed someone and then take it down. Taking down some tweets that it doesn’t like doesn’t mean that it thus gave editorial approval to every tweet that it leaves up.”

                  That’s right, they can’t. But yes, that’s exactly what that means.

                  Twitter’s current business model relies on an illegitimate subsidy by the Federal Government, giving them a freedom to publish without concern for libel laws that most publishers do not have.

                  The fact that they can’t survive without that subsidy doesn’t make the illegitimate subsidy suddenly legitimate. It just makes their business model illegitimate, too.

                  Just like Napster

                  1. The defense of Twitter’s censoring of content is that what is published on Twitter is “Twitter’s voice”, and they have a right to decide what that “voice” will be.

                    That’s one version of the defense of Twitter, but that is not how I see it. It isn’t “Twitter’s voice” when users post their tweets. But Twitter is a business that owns and maintains the platform, which gives it the right to set the rules of behavior for the community of users that it serves. Users of an online platform where they can post themselves and read the posts of other users might want that community to have rules of behavior that line up with how people are expected to behave at other private businesses, rather than it being a place for the most loud and obnoxious people there to behave however they feel like behaving. If that would drive away people that the platform wants as customers, they are free to demand behavior that suits their business.

                    Keep in mind that users of most social media platforms also have the ability to filter what they don’t want to see, block others from commenting on their tweets, and more tools that some might view as “censorship”. But of course, that would be wrong, and perhaps you’d agree, since those tools are in the hands of the users themselves.

                    The case is moot now, with no final ruling setting any precedent, but that was an issue with Trump’s Twitter account, you might recall. He was blocking some people from commenting on his tweets, or something like that. But because he was President, and he used his Twitter account in a semi-official way, some were arguing that he couldn’t do that, even though it was something all users had the ability to do on Twitter.

                    1. “But Twitter is a business that owns and maintains the platform, which gives it the right to set the rules of behavior for the community of users that it serves”

                      Ah, but it’s not in fact doing that, and everyone knows it.

                      The Ayatollah Khamenei calls for Israeli genocide on Twitter, Twitter does nothing

                      https://www.jpost.com/middle-east/twitter-downplays-khamenei-calls-for-genocide-as-political-speech-636910

                      BLM /Antifa promote violence on a regular basis on Twitter, Twitter does nothing.

                      Twitter’s “rule” is that “if a woke punk doesn’t like what you’re doing, we reserve the right to censor you”, which is not “set[ting] the rules of behavior”

                  2. That’s right, they can’t [moderate every single one of hundreds of millions of tweets a day]. But yes, that’s exactly what that means.

                    Twitter’s current business model relies on an illegitimate subsidy by the Federal Government, giving them a freedom to publish without concern for libel laws that most publishers do not have.

                    Why is moderating a small fraction of hundreds of millions of tweets a day legally the same as publishing a newspaper, magazine, book, or this website, when publishers do have direct editorial control over every word that gets published, in advance, but Twitter absolutely does not, as you just admitted? You are still skipping that crucial step in your argument.

                    The authors and editors that write for Reason here are subject to full editorial control over what they write. Reason is the publisher, and could be liable for any defamation or other harm caused by what they publish. But what about the comments we post? If they moderated our comments, at all, would they be publishers of our comments that could be sued along with us? Your argument about Twitter would apply to every single form of user-generated content on the internet, including the comments sections of articles like this one.

                    1. They’re not “moderating a small fraction of the tweets”, they’re driving out everyone who effectively disagrees with their point of view.

                      They’re suppressing publicly relevant news because it hurts their political candidate, a month before an election (Hunter Biden’s laptop).

                      Before they started their purge of wrongthink, conservative views were roughly 1/2 the political posts on Twitter. The fact that they’ve been successful in driving out those views, so that now’s it’s a “small percentage” that they’re censoring, doesn’t lessen the enormirty of their actions

          2. (Note: I know one of you wankers is going to want to bring up big tech and censorship at this point. I have absolutely no problem with publishers getting to chose what they will and won’t publish. What I have a huge problem with is publishers who call themselves “tech companies”, and because of that still get to publish only what they want, but are NOT subject to the libel, etc. laws that every other publisher is subject to.

            There is no law for “tech companies.” The law applies the same to all companies, whatever they “call themselves.” What § 230 distinguishes between is where the material is distributed: online, or off.

            1. Nope. Twitter publishes that it’s “Trending” to attack someone in a social justice cancellation mob, and highlights personal attacks on an individual: protected by Section 230

              NYT states that “a whole bunch of people are attacking Joe Blow for being an evil racist pig”, and lists all the attacks, highlighting them, and effectively encouraging people to attack this person, stop doing business with him, etc.

              NYT can be sued for interfering w/ commercial arrangements, can be sued if it highlights any false attacks, etc.

  13. I’ll just throw this out there, I dont know if I actually believe it but just a thought:

    Why doesn’t the court just get out of all this? Philadelphia wins here. LGBT loss in Bostock.

    Let the democratic process work. If democracy favors a strong non-discrimination regime, so be it. If we didn’t vote for those protections, then so be it! Don’t reinterpreted text to mean something no one intended it to mean and no one who read it thought it meant.

    The reason we have so many issues like this is that the court insists on taking these issues on. And you will get problems like this that are impossible to resolve. Smith basically said use the democratic process if you want an exception. We won’t make those exceptions illegal per the equal protection clause.

    But the same should hold for everything. Want gay marriage or expanded protections? Use the democratic process. It won’t work out for everyone, but it will probably reach an equilibrium everyone agrees to, because if they won’t the people in power will lose it.

    1. Then you will hear….But my rights are not subject to a vote! That point was made several times in the same sex marriage debate.

    2. So, what you’re saying is “I find the Constitution inconvenient, so we should get rid of it.

      Dump Row. Dump Obergefell. Dump Miranda. Dump limits on the death penalty. Dump Miranda and the exclusionary rule. Dump NYT vs Sullivan.

      Then we’ll talk about dumping 1st Amendment protections for the rest of us

  14. Another Roberts 100 dimension chess opinion for a “doctrine” win. Part of his obsessive striving for 7-2+ opinions.

    1. Is that necessarily bad, Bob from Ohio? = Part of his obsessive striving for 7-2+ opinions.

      At this moment in time, it is the better course for America, I think. The way I see it, right now it is better for our country not to be even more up in arms with endless 5-4 SCoTUS controversial decisions. My impression is CJ Roberts gets these 7-2+ decisions because he consciously (you might even say obsessively) narrows the grounds to get greater agreement.

      I am Ok with that trade-off; it is the least of all evils.

      You made an earlier comment upthread that I wanted to mention: Children need a mother and a father in the home. I agree 100%. That is the ideal placement.

      1. “My impression is CJ Roberts gets these 7-2+ decisions because he consciously (you might even say obsessively) narrows the grounds to get greater agreement. ”

        He narrows the ground into nothingness. Any opinion on a controversial subject that gets the Unwise Latina’s approval is a bad opinion.

        I note he seldom worries about Thomas and Alito, just the liberals.

        1. LOL = Any opinion on a controversial subject that gets the Unwise Latina’s approval is a bad opinion.

          CJ Roberts is doing exactly what he said he would do during his confirmations hearings. 🙂

          1. John Roberts, saving conservatives from themselves since 2005.

            1. And that’s why I predict Roe will be overturned but with exceptions for rape and incest. Having exceptions for rape and incest bails out Republicans in red states that would outlaw all abortions which would lead to a backlash among suburban mothers.

      2. ” with endless 5-4 SCoTUS controversial decisions ”

        I — or, more accurate, a majority consisting of better Americans — could and would solve that problem by precipitating some 6-5 or 7-6 decisions . . .

        1. Arthur, I don’t think that one (court packing) is in the cards.

  15. Let’s say Philadelphia modifies their law to eliminate the requirement for a religious exemption. Would further litigation continue to be unlikely to trigger a review of Smith because Pennsylvania itself has an RFRA?

    1. If Philly modifies their law so that no one can ever get an exemption (thus removing the basis for the current 9-0 ruling), and goes after CSS again, CSS will sue, ask for an injunction, and get one. They may have to go to SCOTUS to get it, but the same 5 that gave injunctions to NY and CA churches WRT Covid restrictions will give then an injunction.

      Then, in 3 years or so when the case finally gets to SCOTUS, Philly will lose again. Roberts might come up with another 9-0 super narrow ruling, or it might be a 5-4 nuking of Smith.

      But no, until one of ACB, Gorsuch, Alito, Thomas, and / or Kavanaugh is replaced, no one is going to successfully block religious groups from participating in adoption / foster services

  16. In a case like this where there was no injunction ie the injury from lack of referrals spanned 3 years – can the foster parents who were denied referrals, Catholic services who was refused the contract, or even any kids who weren’t actually placed – are any of them entitled to damages from the city?

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