It's our Constitutional Right to be Jerks to teh Gays - Fulton v. City of Philadelphia

Great Debates
21

Say a State wants to provide its citizens with Medicaid. The state solicits groups to administer its Medicaid program, and requires them to sign a contract with this provision:

“Provider shall not reject a citizen for any reason so long as said citizen’s income is under the poverty level, UNLESS the Commissioner grants an exception is his/her sole discretion.”

Now the Church of X applies and asks for a blanket exception to discriminate against… say, Jews. The Commissioner has to say ‘okay’, according to the Fulton court.

~Max

22

I’ll try again with understanding. :slight_smile:

So, let’s take a typical murder law. A fundamentalist Muslim man feels that his sister has “disgraced” the family by committing fornication and murders her. He claims it is based upon religion.

The Court looks at the state procedure and the state fully admits that prosecutors have discretion on what cases he or she prosecutes, but did not exercise discretion in this case.

The State argues, “But we have a very strong interest in prosecuting murders!”

The Court says, “Ah, but your interest cannot be that strong because you allow exceptions. So you must allow one here.”

Am I getting warmer?

23

You forgot to say that the State tries to prosecute, otherwise yes… to nitpick further the suspect would have to claim being prosecuted somehow creates religious hardship.

(Originally I imagined a State law requiring prosecution for murder unless some official grants an exception. That way it is more similar to Fulton.)

~Max

24

Yes, I did forget to add that.

But that is how states work with prosecutorial discretion and all. I can see how this logic in this case could be used to argue that. (It wouldn’t win obviously, but I think it logically follows)

25

I notice that you keep (mis)using the word “overruling.” That’s what a higher court does to a lower court. When decisions on the same level are nullified, the term is “reversing.” SCOTUS cannot overrule itself, because that would mean that it is somehow on a higher level than itself.

26

In some contexts it makes sense for an entity to overrule its own previous orders. In these contexts overrule is a synonym for countermand.

American Heritage entry 1.a.

a. To declare (a court ruling or other precedent) as superseded and no longer accurate with regard to a legal question: In Brown v. Board of Education, the Supreme Court overruled Plessy v. Ferguson.

~Max

27

" The next question is whether we should overrule Williamson County , or whether stare decisis counsels in favor of adhering to the decision, despite its error."

" The state-litigation requirement of Williamson County is overruled."

Knick v. Township of Scott.

" The sole question presented is whether Nevada v.Hall should be overruled."

" We therefore overrule Hall and hold that States retain their sovereign immunity from private suits brought in the courts of other States."

Franchise Tax Board v. Hyatt.

" Abood is therefore overruled."

" Abood was wrongly decided and is now overruled. The judgment of the United States Court of Appeals for the Seventh Circuit is reversed, and the case is remanded for further proceedings consistent with this opinion."

Janus v. AFSCME.

Need I continue?

28

Even today:

*CSS urges us to overrule
*Smith, and the concurrences in the judgment argue in favor
*of doing so,

29

FWIW:

30

It’s not a shock at all if you’ve followed Alito and Thomas. Both have long been the most nakedly partisan and “Republican policy” oriented justices. They’re also our two worst Supreme Court justices, and probably the two worst in recent history. I think these guys get very frustrated with their fellow conservative justices because they see it as 'we’ve won, why aren’t we doing all the crazy shit we want to do."

The issue is a lot of people who end up becoming Supreme Court justices, even on the right, aren’t crazy partisan hacks. John Roberts genuinely cares about the role of the Supreme Court in society, and he fairly clearly understands that if the court just becomes a nakedly partisan, superlegislature for the GOP, on a long enough time scale the court is going to see its role significantly clipped in some way. There are a lot of ways (many of which require no constitutional amendment) an angry Democrat Congress could undermine the Supreme Court. Roberts hope is the court keeps its institutional legitimacy such that this is never seen as a viable political option.

Kavanaugh appears to be somewhat in the Kennedy mold, albeit more conservative. I haven’t seen much evidence, despite his lamentable confirmation process, that Kavanaugh is going to be anything close to a third member of the Alito/Thomas gang that just blanketly ignores even their own prior opinions to justify Republican party goals.

I feel like the jury is still out on Barrett, although early signs again, are not good if you’re an Alito or Thomas. She’s obviously a conservative jurist, and many times she’s going to rule with them. But Alito and Thomas actively want to use the court to promote conservative political policy goals, often regardless of what the law says, I have yet to see any clear evidence that’s what Barrett is going to be about.

Gorsuch is going to be the closest bedfellow of Alito/Thomas, but even he I think isn’t quite the partisan hack they are. Instead Gorsuch may just be the most genuinely extreme textualist+originalist (they aren’t the same thing, but Gorsuch is both) and conservative as a matter of philosophy, on the court. He has issued several dissenting opinions since joining the court that are highly concerning and suggest he would be happy to tear up extremely well established precedent to get back to “original intent”, which opens up a nest of problems. But even Gorsuch you find in weird quirky rulings, he doesn’t actually seem to be as married to Republican politics as Alito or Thomas, he just has a judicial philosophy that will often overlap with them.

If you follow Alito and Thomas both are quite active outside of their work life in official Republican politics. Alito frequently gives political speeches at various events that are deeply political. Thomas’s wife had a long career as a far right political activist. None of the other conservative judges has behaved so openly politically outside of their jobs. Even Kavanaugh who probably has the most partisan pre-judicial background, appeared to behave more in line with acceptable neutrality for a judge during his time on the circuit court and has continued that practice into the Supreme Court.

31

Interesting that in the Politico article, it suggests that Alito may have had the majority originally in Fulton but Breyer managed to poach the majority away from him.

32

I can believe that. Alito’s opinion is around 70 pages long and it just reads like a Court opinion with its in depth analysis. Very unlike a dissent (I know it was technically a concurrence). It may very well have been Breyer that talked Barrett and Kavanaugh into switching turning a 5-4 to overrule Smith into a 6-3 not to do so.

And after finally reading Alito’s opinion, I tend to agree. I don’t like Smith. But what replaces it may be far worse. I don’t like balancing and “compelling interest” tests anyways, but there are so many snares and pitfalls for Alito’s pronouncement that with a different Court, it could end up far, far worse for religious groups, and really for society as a whole.

Just take this case. Which is a more compelling interest? That CSS continue its decades long mission of placing unwanted kids in good homes or that the city have ideological purity by catering to gays without exception-----ah, but see that’s the way I asked the question? One could just as easily ask it like the OP. The answer to that question is not based on anything Constitutional (except for the Free Exercise Clause).

Under Smith and under Alito’s new test, religion is still not given the status of a protected Constitutional right—the government can still take it away by the particular wording of the law and its outside practices. But there must be some control on it (no human sacrifice, stop anyone from falsely claiming religion) but how do we do it? I think you are right that Breyer convinced Barrett and Kavanaugh to slam on the brakes and think about this some more.

33

Ugh, what a slog. Within the first couple sentences, Alito is poisoning the well with overwrought bullshit like “Even if a rule serves no important purpose and has a devastating effect on religious freedom, the Constitution, according to Smith, provides no protection.” At least it is good to know upfront his concurrence will be more a partisan diatribe than anything else.

You think Alito’s opinion, were it the majority, would be worse for religious groups?

That’s an … interesting? … reading. Not one that I, Alito himself, or a vast majority of legal commentators reached though. A vast majority of us agree that Alito’s test would be much, much better for religious groups.

You do realize Alito answered that very question in his opinion, and to the surprise of absolutely no one, he concluded the law outlawing discrimination against homosexuals, would fail under his test.

Quick question: Do you think if CSS decided their religion required that they should be allowed to not allow black people to foster, it would survive Alito’s test? Why would it be different if it’s homosexuals?

34

It may be worse for religious groups. If Justices are not the Court who do not favor the religion in the balancing test, then the religious group is out.

Sure, but he answered it for himself without any support. There really isn’t a test. Another Justice, even under Alito’s ruling, could find differently.

35

Which is true of pretty much every test ever used by the judiciary. Alito’s test is, by every measure and according to almost every legal scholar, a much easier test for religious groups than the Smith test is. You’re simply wrong.

Which, once again, is true of every judicial test ever created.

“If Smith is overruled, what legal standard should be applied in this case? The answer that comes most readily to mind is the standard that Smith replaced: A law that imposes a substantial burden on religious exercise can be sustained only if it is narrowly tailored to serve a compelling government interest.”

You’re wrong. Again.

And I couldn’t help but notice you dodged my question on whether fighting anti-LGBTQ+ discrimination is a compelling governmental interest like fighting racial discrimination can be.

36

I’ve probably been inarticulate and we are talking past each other. My point is that your question which I am “dodging” is exactly my objection to Alito’s opinion.

How “compelling” is the state’s interest in doing what with LGBTQ exactly? “Fighting discrimination”? Even if CCS wins a real decision, no LGBTQ member of Philadelphia will be prevented or delayed in becoming a foster parent; not one. They will simply be referred to one of another two dozen in the area. How much should CCS’ “free exercise of religion” “balance” against that?

Every person alive could describe the various interests in a myriad of different ways and come up with different conclusions based on different inputs. And it all boils down to how the individual judge thinks gay rights v. religious rights are important and that will influence how he/she feels about how great the burden is placed on each party and then will influence the case decision.

That is a way to run a legislature, but not a court.

So, I’m not dodging your question. I’m saying that your question is irrelevant. We can go a few rounds of questioning and I can tell you my position on it and you could do the same. It doesn’t make law any clearer for the next debate down the road, say peyote smoking for religious purposes vs. the general law against peyote smoking, or the Amish sending their children to school through the eighth grade vs. the general law that kids must go to school through age 16.

What I am saying is that Alito’s preferred opinion would make the Free Exercise clause less valuable than the Smith test with a future Court that is less inclined to value the CSS way of thinking whereas the Smith test would make a future Court’s opinion of the balancing off limits so long as the law was truly generally applicable.

ETA: IOW, my objection is not that a judge could find a treatise or read a law book differently, but that he would make a personal value judgment differently.

37

That sort of argument has never worked, though. The fact that there are other places that don’t discriminate has never been considered a valid reason to allow discrimination. There’s a pretty clear precedent for that.

Similarly, it seems pretty plain from precedent that freedom of religion is not ever going to allow one to circumvent anti-discrimination laws. You can practice your religion without forcing it upon others.

So, what I’m arguing in the more general case is that they shouldn’t be using personal values, but instead rely on precedent and the good arguments contained therein. And if there is no precedent, or a judge thinks the precedent’s arguments are lacking, then that judge would have to make an argument that convinces four other judges. Personal conviction alone is not enough to accomplish that.

That which comes before the Supreme Court will not have bright lines, and thus there will always be some subjectivity. But there’s no reason that subjectivity has to be based on a single judge’s personal convictions, nor should it be.

38

I’ve read your post 3 times now and I still am at a loss ascribing any actual meaning to it whatsoever, legal or otherwise. The nearest to any possible sense I can make of it is that you seem upset that judges have to judge. It just non-sensical word salad.

39

Lemme try again, and then I’ll get back to @BigT in a bit.

I am not upset that “judges have to judge.” Of course they do. That is not judicial activism or anything bad.

But let’s take this case and I’ll hypothetically answer your question in two ways: 1) I think gays are horribly immoral and should not parent foster children, or 2) I believe that there is nothing wrong with being gay and that they can be just as equally good as parents as heterosexual couples.

How does having either #1 or #2 opinion, which is a personal value, answer the legal question, based upon constitutional history and tradition and text, of whether CSS or Philly has the better legal argument in this case?

Put me in the legislature? I vote either #1 or #2 as I see fit. If I am a judge, it is my job to go and find a legal answer and use my Ivy League degree to discern it the best I can, no matter my personal moral opinion on the underlying subject.

If Free Exercise of religion doesn’t go that far, then I uphold the law. If it does, then Philly is infringing on a constitutional right—my opinion about gays and children and foster case is absolutely meaningless.

40

You seem to be just stating truisms. Judges should make rulings based on the law (although it is inevitable their personal views will influence their decisions one way or another). Great. Not a point anyone one contesting or that has much to with anything I’ve said. But a point, I guess.