Conservatives after Fulton: Time for a New Path

There was a brief sigh of satisfaction last week when the Supreme Court came to the rescue of Catholic Social Services (CSS) in Philadelphia (Fulton v. Philadelphia). The Court vindicated the right of the CSS to honor Catholic teaching as it pursued a mission in this country that long antedated the Founding of these United States, the mission of caring for orphans and arranging for adoptions. CSS tries to place children in secure families with a father and mother, but it held back from placing children with same-sex couples. It was a breakthrough of sorts that Chief Justice Roberts decisively recognized for the Court that this was not merely another one of those services that could be supplied without a trace of moral endorsement. If CSS held to the public guidelines, it would become complicit in an arrangement based clearly on a rejection of Catholic teaching.

But the victory lasted only moments as the conservatives focused, with disbelief and outrage, on the tenuous threads that held together the judgment of the Court. Pennsylvania was refusing a license to the CSS to continue in its distinctive work if it discriminated on the basis of “sexual orientation.” Still the law made a provision for exemptions, and the Court treated that feature as a telling fault in a law that was meant to be “generally applicable,” or binding on all in the same way. If exemptions could be made, there could be a disability inflicted distinctly on the religious if they were not covered in these exemptions.

But as Justice Alito pointed out, no exemptions had ever been granted. That was the point, as it happened, that unraveled the whole judgment, or revealed the fecklessness in the opinion.  For as Alito pointed out, the easy response, sure to come, is that the authorities in Pennsylvania will simply remove that unused provision for exemptions.  In that case, Catholic Social Services will be in court yet again, pursued precisely in the same way that Jack Phillips, the Master Baker in Colorado, has been pursued even after he had won his case in the Supreme Court.  (And he could be pursued because there, too, the Court had found in his favor with a decision that didn’t run to central issue of substance in the case.) Catholic Social Services will be back in court for another round, and as Alito asks, “What is the point of going around in this circle?”

For Alito, the cycle could be broken only if the Court summoned the nerve to abandon Justice Scalia’s famous opinion in Employment Division v. Smith (1990), an opinion that has been curiously, and to my mind, unjustly reviled, even by some of his best friends.  Alito makes, as ever, a powerful case. And yet the judges may be distracted by illusions if they think the problem will be solved by overthrowing the Smith case. The judges will find, if they strike at Smith, that they will be going around in circles once again, but different circles. They will be moving along another path, but it may be ever clearer to them that they are still dancing around the central issue, or stumbling block, that continues to govern these cases. 

What was the problem with Justice Scalia’s opinion in the Smith case? The holding there was that if a statute was one of “general application”—if it were directed to a legitimate purpose (say requiring social security cards);  if it revealed no animus toward religion;  then there could be no tenable ground on which to confer, upon the many religious groups, a right not to be bound by a law that bound everyone else. Scalia alerted people to the possibility that legislatures could make these provisions as they seemed suitable to the local community (as indeed the Congress sought to do with the Religious Freedom Restoration Act, or RFRA). That was quite different from the Court proclaiming a sweeping new doctrine that could undercut the obligation to respect any law, grand or prosaic.  In his searing opinion, so critical of Scalia’s argument, Justice Alito offers of counter examples, but those examples are tilted to the side of legislatures and constitutions making explicit accommodations for the religious.  And yet that is all quite compatible with Scalia’s argument, for it leaves it to local communities to make their own accommodations with the felt needs of their people.  (But as seen from that angle, the cases reveal another dimension of the scandal: It is inconceivable that in the Boston of James Curley or “Honey Fitz” Fitzgerald, the City would have barred Catholic Charities from caring for children. What is revealed, in a flash, is the weakening of Catholicism as a political force in Philadelphia and Boston—or the receding of fidelity among Catholics themselves.)

But for Justices Alito, Gorsuch and Thomas—dear friends and admirers of Scalia—Scalia’s opinion in the Smith was now precisely the wrong that had to be exorcised.   Their complaint was that the case was an aberration, that Scalia had taken an abrupt departure from a policy that had long been settled in precedents. That was a policy of making accommodations with religion, even against statutes that were directed to secular ends, widely shared.   The key break, they think, came with the move away from Sherbert v. Verner (1963).  In that case, a woman who was a Seventh Day Adventist, could not accept a job that compelled her to work on Saturday.  Her ostensible difficulty of finding a job of that kind propelled her into unemployment.  But the laws  made no provision for people claiming public welfare because they couldn’t find a job that did not require them to work on Saturdays.  The Court struck down that denial of compensation.   Justice Brennan argued that it was a matter of withholding benefits, or effectively penalizing a woman if she refused to “violate a cardinal principle of her religious faith.”

The contention of the conservatives was that Sherbert v. Verner had emerged from a long line of precedents in which the Court confirmed the need for some greater accommodation for the religious. That claim was embarrassed, though, by the fact that just two years earlier, in Braunfeld v. Brown, the Court had upheld a Sunday closing law in Pennsylvania that cut against the interests of Orthodox Jews in a serious way. They were obliged to honor their Sabbath on Saturday, and if they could not do business on Sunday, their businesses and livings could be impaired. That serious injury was taken by Chief Justice Warren as one of those regrettable side costs of a law that was otherwise quite warranted in assuring that people would have at least one day of rest. 

Scalia was surely as close a student of precedent as the conservatives now on the Court.  His successors claim that he was ignoring a line of precedents, but Scalia had offered a line of precedents even longer, and quite as plausible. And so the Court had not been willing to sustain exemptions for the religious in cases of this kind:

— that the Amish could not have an exemption from Social Security taxes (United States v. Lee)

— that there could be no religious exemption from the income tax  (Hernandez v. Commisioners)

— that religious objections do not hold against logging and the construction of roads on lands used for religious purposes by several Native American tribes (Lyng v. Northwest Indian Cemetary Protective Assn.)

­— that prisoners could not be excused from “work requirements” to attend religious services  (O’Lone v. Estate of Shabbaz)

— that religious conviction would not be enough to claim a right of “selective conscientious objection,” objecting to particular wars (Gillette v. U.S.)

— that there could be no religious exemption to a statute that required the recipient of federal benefits to provide their Social Security numbers  (Bowen v. Roy)

And of course long before these cases there was:

— the refusal to allow a woman to take her children out of school to hand out religious leaflets on the street  (Prince v. Massachusetts)

There were of course those precedents cited by Scalia’s critics, but as he aptly pointed out, those cases did not turn on the matter of religious belief. They turned, rather, on the violation of some other constitutional right. The most notable example here was the “flag salute” case, West Virginia School Board v Barnette.  The parents and children of Jehovah’s Witnesses regarded it as a form of idolatry to salute the American flag.  But Justice  Jackson did not vindicate their rights under the banner of “religious freedom.” He found the wrong here in compelling people to speak an orthodoxy they did not share, a measure that should not be imposed on anyone, even apart from the religious. 

But then, in a further response to his critics, Scalia denied that Sherbert had produced a long string of precedents that he was ignoring now in 1990. He pointed out that the Court had “ never invalidated any governmental action on the basis of the Sherbert test except the denial of unemployment compensation.”  And in a striking contrast with Sherbert, the Smith case involved the withholding of unemployment compensation from men who had lost their jobs because they had violated the drug laws in Oregon. The decision to withhold compensation would be wrong only if it were wrong to enforce the drug laws, in this case, on men using peyote in a Native American ritual. We don’t ordinarily offer unemployment compensation to safecrackers who have not had much business of late. There would be a need to show then that the “drug laws” were not as justified and defensible as the laws that barred the cracking of safes. If that couldn’t be done, where would that bring us?  Would it be:  to a presumptive right to exemption, on the part of the religious, to any law that ran counter to their deep beliefs?  That is precisely what Scalia took as the alternative—and the challenge: “To make an individual’s obligation to obey such a law contingent upon the law’s coincidence with his religious beliefs, except where the State’s interest is ‘compelling’ – [would permit him] by virtue of his beliefs, ‘to become a law unto himself.’”

If Justices Alito, Gorsuch and Thomas get their wish, and the holding in Smith is struck down, how would they meet Scalia’s challenge?  They would simply open themselves now to a new battery of problems that have already proved intractable for them and their colleagues.  In the first place we are dealing with a Court that long ago abandoned any faintly demanding tests of what constitutes a “religion.” They have been willing in certain cases to uphold claims to strong passions on the meaning of life that might be taken as “the functional equivalent” of religious convictions.  And since the Court has no real definition of religion, the business of doing such things as religious invocations at local councils has created a new growth industry for Satanists, and even for a few sprightly “ministers” of the Church of the Flying Spaghetti Monster.

Justices Alito and Gorsuch, two estimable men, managed to bring this problem to another level, to put it mildly, when the case of the Masterpiece Baker fired them to this soaring statement:

“just as it is the “proudest boast of our free speech jurisprudence” that we protect speech that we hate, it must be the proudest boast of our free exercise jurisprudence that we protect religious beliefs that we find offensive.”

With those sweeping words they seemed to waive any moral grounds for judging the legitimacy of anything offered to the public under the label of “religion.” The only limitation that the justices seem willing to credit is that the claim to belief be “sincere,  not a contrivance or a pretext.  But if there is no moral ground of judgment, why does “sincerity” have any special claim on us? Why does the Church of the Flying Spaghetti need to be sincere?  The test of sincerity is but a way of smuggling in a moral judgment through a back door.

The matter may be instantly tested in this way:  The fundamentalist circle found in Bob Jones University earnestly claimed to find in scripture a doctrine of separating the races. Let us suppose that we had a baker drawn from that persuasion and he refused to make a cake to endorse an interracial marriage. It seems utterly inconceivable that Justices Alito or Gorsuch, or any of their colleagues, would honor that claim. For have they not now, by their own words, foregone any objection even to the most “offensive” doctrines?  But if that claim is not honored for the Bob Jones baker ….we’re back with Scalia in the Smith case. We are back, that is, with the burden of explaining why religion provides a ground of exemption in any particular case where the laws are binding on everyone else.     

As the Court made clear in the 1870’s, the law would not permit widows to be burned on funeral pyres even if it were a matter of earnest religious practice.  And in our own day, there would be no religious exemption offered—or even sought—from the laws that bar discriminations based on race.  What even the conservatives have not quite grasped is that the activists on the Left think that discriminations based on sexual orientation have the same moral force as the laws barring discriminations based on race. And for that reason, they think that those laws should be no more open to religious exemptions. Justice Alito caught the edge of this at the end of his opinion.  The principles about marriage held by CSS were bound, as he said, “to be objectionable to same-sex couples, lumping those who hold traditional beliefs about marriage together with racial bigots is insulting to those who retain such beliefs.” But that, exactly, is what has to be explained.  As he himself has said, the fact that a view may be “insulting” or “offensive” does not prove it wrong—or that it can’t be respected in the courts.   In Obergefell, as he pointed out, the Court “refused to equate traditional beliefs about marriage, which it termed ‘decent and honorable,’ with racism, which is neither.” True enough, but nothing there meant that Justice Kennedy was willing to support an exemption for the religious from the laws that barred discrimination based on “sexual orientation” Or going to the root: any adverse judgment on the homosexual life. For he had already branded that view as an irrational “animus.” 

That is the argument that has to be met before Justice Alito can carry his case, and as soon as Smith is swept away, so too are the distractions about religious belief.

For the case is not finally about religious belief;  it is about the rightness or wrongness of same sex marriage.  Or going again to the root: why there is nothing wrong in making discriminations, or judgments, on different “sexual orientations.” After all of the maneuvers over religious belief, these are the points that will continue to govern these cases.  But as we have seen, though, often enough, the conservative judges have cultivated a deep aversion to addressing the questions of moral substance at the heart of these cases. 

But the point of entry could come with the sleight of hand performed by the proponents of same sex marriage. Things would look strikingly different if these laws threatened to punish people who were opposed to same sex marriage. There would be a need to explain why it had become overnight illegitimate to express in a public a view that has been held for millennia, massively favored in this country, and still held widely. That awkwardness has been escaped because the statutes at work do not bar critical views on same-sex marriage.  They bar the acts and gestures that convey an adverse judgment on “sexual orientation” or the homosexual life. That does the work. After all, Justice Kennedy made the case for same-sex marriage by arguing that what drove the opposition was this irrational willingness to find fault with people for their sexual orientation. Just why it has been wrong to find fault—just why this matter has risen from a difference of personal taste to the level of a moral wrong—has still not been explained. 

There exactly is the best place to begin. The telling arguments have been made over the years on “sexual orientation” and it would be no strain for conservative judges to start drawing on them, as indeed Judge Martin Feldman started drawing on them a few years ago in the case challenging the laws on marriage in Louisiana.   For one thing, as many people have long pointed out, the term of “sexual orientation” is so abstract that it could cover sex with animals. And within the circle of gays or lesbians, there has been a serious argument over the inclusion of pedophiles or members of the Man-Boy Love Association in Gay Pride Parades.  But if gay activists are willing to consider some “sexual orientations” as not quite respectable or legitimate, how could it possibly be warranted in passing laws that forbid all  discriminations based on sexual orientation?  Is it not evident that some “sexual orientations,” such as zoophilia (sex with animals) or sadism, have been judged as repellant by gays as well as “straights”?

The beloved Paul McHugh, at Johns Hopkins, has taken the argument to another plane:  He has pointed out that the very category of “sexual orientation” is deeply unstable. People shift in and out of these “orientations” all the time.  McHugh noted that “a 10-year study of 79 non-heterosexual women …in 2008, reported that 67 percent changed their identity at least once, and 36 percent changed their identity more than once.” In other words, we do not even have a clear definition of the “protected class” here, the people licensed to launch lawsuits and stir prosecutions.

If Judge Feldman in New Orleans could draw on these points in shaping his argument, any federal judge could do it now, and the situation is prime for doing.  If it could be done, there would be a powerful tool removed from those activists all over the country who are trying to harass and punish the defenders of natural marriage. And the tool would be transferred then to the hands of people who could readily defend their First Amendment freedom to make serious moral arguments in public about same-sex marriage. 

There is no question that this may all be done. The question is whether the conservative judges are willing to stir themselves, to show their wit and nerve in finally engaging the argument that counts. But still it must be said:  It would be far easier for them to do that if those arguments were put before them by the lawyers who were making the case. And so the challenge shifts: Can the gifted lawyers who are arguing the cases begin with our heartfelt defense of the religious, and then make the bridge to the substantive moral argument that would finally prove decisive?

But this path would also offer a consolation on all sides. For in itself, it would deprive no people of their marriages.  It would move, as Lincoln would say, “not rending or wrecking anything.” It would end the use of the law as a gratuitous weapon, battering the lives of people who have borne no animus to gays and lesbians, and whose sole offense is that they cling to an understanding of marriage that has been compelling and enduring—at least until six years ago. In the meantime, it would deliver us from a fog of abstraction, and give us a second wind to stand back and think anew.

Hadley Arkes is the Founder and Director of the James Wilson Institute as well as the Edward Ney Professor Emeritus of Jurisprudence at Amherst College.
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