Court Takes Case That Could Enhance Religious Rights

sex couples. My guest is Richard Garnett, a professor at Notre Dame Law School. Why is this case important enough for the Supreme Court to have taken it? Yeah, well, that's that's always the big question in these issues. You know, the standard line is that they don't take cases just to pat the lower courts on the heads. Often it means to something about the decision that's caught their attention.

I think the most straight forward answer is that there's a disagreement among the federal courts of appeals regarding a fairly technical question of First him in doctrine. You have the lower court in this case agreeing with the Ninth Circuit out West on one way to interpret some of the Supreme courts precedents, and then you have several other courts of appeals that have lined up on the other side.

And that's one of the sort of standard situations when the Justices will weigh in when they need to clear up a disagreement among the lower courts. So I think

that's the most straightforward possibility. A second possibility is intriguingly presented by another one of the questions presented in the briefs, and that is whether the Supreme Court should take another look at this thirty year old decision called Employment Division versus Smith, which is kind of the basic foundational Supreme Court precedent when it comes to exemptions for religious exercise.

And you know, scholars have been criticizing the Smith decision ever since the day it was announced, and at least thirty years ago, there was agreement among many scholars on the political right and the political left, although some of those views have kind of migrated over time. But if they want to, the Justices could use this case as

an opportunity to to revisit that old decision. I suppose one one standard line about Chief Justice John Roberts and his court is that he often prefers to take the narrower approach to a question rather than the broad sweeping one. And if that's true here, then they might decide that it's enough for this case simply to resolve the disagreement, but among the lower courts, rather than you know, reopening

this thirty year old case. But I imagine you'll see a whole lot of commentary and amicus briefs from religious liberty scholars talking about the possibility of of a substantial change in this area. Before we get into the weeds,

tell us what the issue is in the case. The basic issue, well, the issue is whether a Catholic foster care agency, Catholic Social Services, may be excluded by the City of Philadelphia from certifying and placing kids in foster care because the Catholic Social Services has a policy of not referring for same sex couple and so the City of Philadelphia, when they learned that Catholic Social Services had

this policy, they moved in various ways. And one of the disputes in this case is the various ways that Philadelphia did try to do this. But they moved to say that if Catholic Social Services had this policy, this religion based policy, that they could no longer be involved

in foster care placements. And so there are some some foster parents who have worked with Catholic Social Services in the past, you know, longtime foster parents who are challenging Philadelphia's actions, and one of the things they're saying is that it's unconstitutional for Philadelphia to target Catholic Social Services for exclusion like this simply because they dislike or disagree with the religious position that Catholic Social Services has, which

is that they want to place kids in opposite sex couple situations. But aren't there rules in Philadelphia rules against discrimination in Philadelphia, and the Catholic foster agency are not giving foster kids to gay couples. Is a violation of those rules. Yeah, so there's two layers here. The first layer is it's actually not clear that the relevant rules and regulations in Philadelphia actually did prohibit this kind of

selectivity on the part of foster care agencies. That's kind of business in the weeds, and we probably don't want to go into it. But Philadelphia invoked sort of four different successive reasons why CSS Catholic Social Services needed to be excluded. There is a question really of whether Catholic Social Service was actually violating the rules in the first place.

But if they were, or if they are in violation of a general rule against any kind of discrimination in terms of placement, then cathol Social Services is asking the court to say, well, that's fine, Philadelphia can have that rule, but if that rule imposes a substantial burden on religious exercise, then they're entitled to an exemption from that rule. Now to get to that point, you'd have to overrule the

court's decision in Smith. The third point, I know, I said they were only two, but I like a lot of professis the third is that Catholic Social Services is arguing that Philadelphia doesn't really enforce this alleged rule against nondiscrimination, equally, that they do allow various foster care placement agencies to make exceptions to make referrals, because Catholic Social Services position is that they'll always refer people like the same sex

couple who wanted to get involved in foster care, they always refer them to another agency, so there wouldn't be a question of preventing the same sex couples from being able to participate. And what CSS is saying is, you know, Philadelphia is not really enforcing this equally against all foster care agencies. They're singling us out, and therefore that violates

the First Amendment. So that's the position. And as I said a second ago, the Court could kind of take a broad view and say, look, Philadelphia rules, if they burden religious exercise, they have to satisfy a very demanding standard we call strict scrutiny. Or they could take a more narrow approach and say, the First Amendment doesn't allow Philadelphia to kind of thing allowed Catholic Social Services for this kind of special exclusion just because they disapprove of

their policy. I've been talking to Richard Garnett, a professor at Notre Dame Law School, about the Supreme Court accepting a major new religious rights case, agreeing to decide whether Catholic Social Services can be excluded from Philadelphia's foster care system because the group won't place children with same sex couples. Rick, I want to get back to the case of Employment Division versus Smith, decided by conservative Icon Justice and in

Scalia last year. The courts foremost conservative members, Justices Clarence Thomas, Samuel Alito, Neil Gorsuch, and Brett Kavanaugh, signal they were open to reconsidering that decision. Yeah, this is an area where sometimes the kind of conservative and liberal labels that

we use aren't particularly helpful. So in the Smith case, you're right, it was authored by Justice Scalia, and that was a decision that said, look, the government's allowed to apply neutral, generally applicable rules across the board as long as it's not discriminating against religion. You don't have a constitutional right to an exemption. But he was joined in that opinion by quote unquote liberal icon John Paul Stevens.

And you know, on the other side, you had conservatives, say Sandra Day O'Connor, but you also had liberal justices, And there's been historically kind of agreement across ideological lines that in order to protect religious freedom, you do sometimes need to give religious believers exemptions from general laws, whether those laws or things like imagine a rule that requires you to have a bare head in your driver's license photo. Well, what if somebody has a religious obligation to cover his

or her head. It makes sense most people think to provide an exemption in that case. But of course you can't give exemptions to everybody who wants them, because then, as Justice Lea said, you might well have chaos. It's very hard to administer the rule of law when everybody gets to decide whether or not they're going to follow it. But that's kind of a in a way, a straw man. I mean, the courts have for years now been working

with statutes like the Religious Freedom Restoration Act. What laws like that do is they ask courts to basically balance the needs of the government on the one hand, against the needs of the religious dissenter on the other, and to try to find again a balance a way to

advance both the government's important interests and to protect religious freedom. Now, it does appear, as you mentioned, that some of the current conservative justices have over the course of years, come to think that Justice lee As opinion and Smith was incorrect and could be interesting. If they've come to think that, you know, you might think, well, they'll they'll join the liberals and there'll be a decision overturning Smith that's like

eight to one. But because there's been some evolution in the liberal justices thinking about religious freedom too, you might end up, perhaps ironically, with kind of a switch on this question. We will see. It seems as if the likelihood is either that the court is going to overrule Smith or rule in favor of the Catholic foster care agencies. Is there any possibility that the rule against the Catholic

foster care agencies. Well, so, just to clare if I on uh, they could rule for the Catholic Social Services Agency on a number of different grounds, and some would be more narrow than the others. If if they overruled Smith, I think that would mean they probably would say that the Catholic foster Care Agency has a right to an exemption. But certainly they could decide, look, Smith has been the law for thirty years, and under Smith, the Catholic Social

Services foster care program loses. They could say Philadelphia does have a general rule. That rule does apply to this context, the foster care context. They could say there hasn't been any kind of targeting or discrimination against Catholic Social Services because of their religious views and because of the government's disagreement with those views, and therefore they lose. But I

think most court watchers expect that. You know, again, they wouldn't have taken the case if they had that view, because, after all, the Catholic Social Services had already lost below, there really wouldn't be any need to take the ace if they were just going to agree that they should lose.

So that's why I think there's going to be a whole lot of interest in this case across the political spectrum, because there are academics who believe that Smith was wrongly decided and who think anti discrimination law should apply forcefully in contexts like this. Um, so there'll be there'll be a lot of interest. This seems to be another case of religion versus gay rights, and I suspect that many

in the LGBTQ community see it as religion discriminating against them. Yeah. Well, it's certainly true that these days a number of our religious freedom conflicts do involve at tension between the kind of religious commitments of some more traditional groups and believers on the one hand, and non discrimination law that applies on the basis of sexual orientation on the other. So that's the fact we saw that Masterpiece cake shop, We've seen it in a lot of other cases around the country.

Doesn't appear that that conflict is gonna go away anytime soon. At the same time, this issue is a lot bigger than that tension, and I think it's really important to underscore that there's a tendency in some newspaper coverage to act as though the only religious exemptions cases that are out there are cases involving gay rights and same sex marriage and so on, and in fact, such cases are a very small percentage of the number of exemption cases

that actually come up. It's much more common to have exemptions cases involving someone who needs to wear religious headcovering, or perhaps need to have a special accommodation to be able to comply with a religious dietary obligation, or needs to have a foot washing station in a public university

because of a religious need. Again, it's it's a really small subset of religious exemptions cases that involve gay rights, and I worry that the focus on these cases can cause some people to miss the underlying issue, which I think is important and which matters again the people across the political spectrum, and that is, in a complicated regulatory society like the one we have that also has religious pluralism, has religious disagreement, that has religious minorities, the only way

that we can be sure that the majority doesn't just disregard the religious needs and the religious freedom of the minority is to sometimes allow exemptions and accommodations. You know, religious freedom doesn't only belong to people with whom we agree. Religious freedom belongs to people whom we disagree. If we agreed with them, these issues wouldn't come up. And so I think it's important to kind of step back and be sure we keep in view the broader question of

a diverse society. How do you provide adequate protection to people whose religious beliefs might strike us as strange or outdated or what have you. You mentioned Masterpiece cake Shop. If the Supreme Court hadn't sort of decided not to decide the major issue there, the real issue there, would we still be having all these cases? I mean, could the Court have set forth a definitive standard there? Well,

so yes, they probably could have. And um, you know, the composition of the court has changed a bit since then, but Matterpiece had some dimensions that are we're kind of

particular to it. If you if you remember in the cake Shop case, um, the cake artist was not only making a freedom of religion claim, he was also making a free speech claim, arguing that, you know, to require somebody to use their creative skills to endorse a message with which they disagree that that violates the freedom of speech. And you know, again, not all of these religious exemptions

cases have that that speech dimensions. So in a sense, the new case from Philadelphia has the potential, I think too, to sweep a little more broadly and to deal with a wider range of distinctly religious claims than perhaps Cake Shop did. And finally, could this case East lead to a major shift, a major change in church state laws. Well, it certainly could. I mean, if the court were to reverse employment Division versus Smith. You know, that's putting aside

what's been the law for for thirty years. And now it could be that that change would be relatively minor in the sense that they would tweak Smith, but not completely abandon it. But then there's also the potential that they would, just as I said, clarify this disagreement between the lower courts, and then the impact of the ruling would be less sweeping. Although you know, from a lawyer's perspective, it's it's always nice when you have clarity rather than uncertainty.

So I'm sure that lawyers would welcome that too. Thanks so much for being on Bloomberg Law. Rick. That's Richard Garnett, professor at Notre Dame Law School. I'm June Wilso, and this is Bloomberg.