Conservatives want us to believe that there is an unresolved conflict in our laws between two legitimate but competing interests. On one side, there is the overwhelming majority of Americans who believe that discrimination and bigotry should not be supported by the secular government. On the other hand, there is the vocal minority of Americans who believe that government-sponsored discrimination and bigotry are required of God. Conservatives are pretty sure that discrimination and bigotry should always prevail, but they are deeply divided on how to get there legally.
That question – this disagreement about which seal of the theocratic apocalypse should be opened next – was the crux of the Supreme Court decision last week in Fulton versus City of Philadelphia. Technically, the decision was “unanimous” – but in this case the court was broken like a pane of glass that cracked but not yet broken.
The question was whether a religious organization can discriminate against LGBTQ couples who want to provide foster families for children. The City of Philadelphia uses a number of outside agencies to screen potential foster parents. One of these groups is the Catholic Social Service (CSS). This group decided to stop reviewing or recommending gay couples as potential foster parents because they religiously disapprove of anyone being in love in a way they dislike. Philadelphia, in turn, decided to stop using CSS to screen foster parents because the organization’s bigotry towards gay couples ran counter to the city’s anti-discrimination commitment.
Under this agreement, CSS was free to continue its work to discriminate against LGBTQ people if it wanted to; it just couldn’t do that job while being an official government partner. I would ask why any city, city, or religious group would allow any religious group to participate in the selection of families to care for foster children. But I don’t mind; I’m just the type of guy who thinks that religious institutions shouldn’t be entrusted with government duties.
Unfortunately, those responsible for CSS were not satisfied with just practicing their religion freely; Instead, they demanded that the organization retain its role in the state care system. CSS sued the city, arguing that denying its right to discrimination on behalf of Philadelphia affected its constitutionally guaranteed freedom of worship.
To be clear, CSS would always “win” this argument in the Supreme Court because of the six Conservatives on the court who believe that the freedom of bigotry is a constitutional right that trumps all other rights (except, of course the right to kill people with guns).
But “how” the Conservatives should get CSS to victory was a completely open question, as there is a pretty big Supreme Court precedent that CSS should lose. In fact, CSS didn’t just want to win; it sought to reverse the precedent that limits the ability of religious organizations to disregard secular laws. This case is called Labor Department v. Smith, and it was written in 1990 by none other than the conservative hero troll Antonin Scalia. Blacksmith says that generally applicable secular laws do not automatically give rise to a claim under the freedom of religion clause of the First Amendment. Apply this logic to Fulton, a rule that says that “care institutions cannot discriminate against same-sex couples” is quite obviously “generally applicable”, which means that CSS should not have a right to complain.