Thread by @AndrewLSeidel

The Supreme Court is going to hand down the decision on whether the Catholic Chruch’s foster care services in Philadelphia can discriminate against LGBTQ people any day now (Fulton v. Philadelphia). With this court, I’m not optimistic. Here’s what I’ll be looking for…

First, Sotomayor’s dissent. Because she’ll get it right. Read that first. I have little hope that she'll be writing the majority opinion. The Supreme Court is broken, politically packed, hopelessly Christian nationalist.

If you don’t know the Fulton case, it’s pretty simple....

Philadelphia takes care of foster children. It contracts out some of those responsibilities. Catholic Social Services is a contractor but refused to vet LGBTQ couples as potential foster parents or visit their homes. Why? Because Jesus.

The city suspended working with Catholic SS on those fronts (but not others) because this violates the city’s nondiscrimination ordinances. Catholic SS sued, saying religious freedom lets it discriminate, even when acting for the state. That's the basic question.

It's very similar to the gay wedding cake case.

The big *legal* question is whether the court will overturn the Smith decision. I think it will. It may not do so directly, but I think it's likely. The Smith case is often misrepresented. Here’s what happened:

Galen Black was a drug counselor working at a private drug counseling facility that had, unsurprisingly, a “no drugs” policy. Black took peyote during a Native American Church service (he is not, himself, NA, though frequently misidentified as such).

Black refused to get treatment saying he did peyote because he was interested in the Native American religion. So he was fired (again, by his private employer).

Black never challenged the legality of his firing.

Later, Black was denied unemployment $$ by the state because he was fired for cause (a drug counselor doing drugs). He challenged that denial of benefits as a violation of his religious freedom.

The same basic things happened to Al Smith, who worked at the same facility. Except Smith was pissed that the org fired Black for the peyote and essentially did it in solidarity and to challenge the org's policy. Smith was quite the badass (truly) and member of the Klamath Tribe.

They were not fired for doing illegal drugs. Had they gotten drunk, they would have violated the drug abuse org’s rules and been fired too. Stupid rules, but not illegal or unconstitutional in the slightest. SCOTUS muddied the waters looking at the legality of peyote.

SCOTUS eventually said, hey, you were fired as drug counselors for doing drugs, that’s cause for termination, so the unemployment decision wasn’t wrong.

A drug counselor fired for using drugs is simply not controversial.

This comes out as a legal test that basically says as long as a law is general and neutrally applicable (it doesn’t single out religion) it’s a good law and you don’t have a religious freedom right to exempt yourself from it.

It's all very reasonable and correct.

But...

Scalia wrote the opinion and included some supremely stupid and totally unnecessary language that confirmed for many that the court was enshrining an ethnocentric view of the law. This made the case a pariah and led to RFRA which led, eventually, to the Hobby Lobby case.

Occasionally, the case has denied Christians the ability to exempt themselves from the law, so it has been a target of the religious right for some time. And in the Philadelphia case, they have the right vehicle for these extraordinarily conservative, religious justices.

Anyway, the question is how will the court overturn Smith? Directly? Indirectly? Perhaps it will just say that any law with an exemption based on nonreligious criteria means religion gets any exemption it wants—the justices seem to be going that way.

It could be a Roe roadmap.

I’m also watching to see if the court glosses over the fact that Catholic Social Services essentially demanded a right to contract with the City to provide services—a right it simply cannot have, but which must be at least tacitly recognized if the court decides in favor of CSS.

The lineup here will probably be 6-3, but could be 8-1. I wouldn’t be surprised by either or to see Kagan and Breyer write their own concurrence with the majority, or, more likely but not much, their own dissent instead of joining Sotomayor.

If the court decides in favor of Catholic Social Services, it means that the Catholic Church is allowed to use the power and imprimatur of the state to impose its religion on other people. That is certainly a state/church violation.

Philly contracts with the church, giving it the power to vet families and it is vetting those families according to religious criteria based on its theology. Not only that, the government is paying the Catholic Church to impose its religious will on citizens using tax dollars...

That's what the Supreme Court will be allowing, probably in the name of religious freedom: A church to impose its theology and holy book on all citizens using power delegated to it by the government.

This is the antithesis of true religious freedom.

Oh, and this is the Diocese of Philadelphia, which has such an abominable track record with child rape, abuse, and coverup that it was the subject of two grand jury reports (2005, 2011) BEFORE the big statewide report in 2018.
~Fin, for now.

A few additions...

First, the court already basically did one of the things I was worried about. In one of its many shadow docket cases, it essentially decided that if a law has ANY exemption, then religion gets exempt too.
@JimOleske covers it here:
scotusblog.com/2021/04/tandon…

I also discussed that case (Tandon v Newsom) and what it means for religious freedom and state/church separation and how the court is going to "interpret" the law moving forward with @openargs. Yes, those are scare quotes. Yes, you should go listen.
openargs.com/oa483-scotus-g…

If the court does what I think it's going to do, there won't be much we can do to fix it. The court will be reinterpreting the First Amendment. Rolling back a radical redefinition of that right would need either a constitutional amendment or court reform and expansion. So if...

...haven't called your Rep/Senator to demand that they support @RepMondaire's Judiciary Act of 2021, you better pick up the phone. My friends at @WeDemandJustice have some great action items, including phonebanking to change minds.
demandjustice.org/call/
demandjustice.org/court-reform/

Don't wait for this bad decision. Start taking action now. Because if you think this is bad, it's going to get worse.

Decisions come down at 10 Eastern this morning. I'll be watching.