Horowitz: ‘Religious liberty’ in the Supreme Court: If this is a victory, what would a loss look like?

Three years ago, conservatives celebrated the 7-2 ruling in Masterpiece Cakeshop as a victory for religious liberty. Yet, as I predicted at the time, its extremely narrow ruling mixed with implicit anti-liberty inuendo on behalf of protected groups paved the way for Jack Phillips to continue to be targeted, as he is to this very day. Well, history has repeated itself again in the Philadelphia adoption case, except this time it's after the appointment of two supposedly more conservative justices.

In Fulton v. City of Philadelphia, the Supreme Court unanimously overturned the lower court's opinion allowing the city of Philadelphia to discriminate against Catholic Social Services by denying the organization contracts for foster care placement based on their refusal to place kids into homes without a mother and father. A 9-0 victory in favor of religious liberty might sound too good to be true. And in fact, it actually is too good to be true, because this is not much of a victory as it relates to most other cases or likely even for the party in this case. It should have been a much broader 5-4 ruling with all the non-Roberts GOP appointees joining the concurrence written by Justice Alito.

This case presented an opportunity for a supposed originalist majority to overturn a bad ruling from 1990 and finally subject any government burden on religious practice to the strict scrutiny that the court applies to abortion and other contrived rights, but not so much to unambiguous enumerated rights. In a case called Employment Division v. Smith (1990), two members of the Native American Church in Oregon were fired from their jobs for ingesting peyote as part of a traditional religious ceremony. The problem in that case was that the state treated them unequally by denying them unemployment benefits, asserting that their own "misconduct" led to the terminations.

The central flaw in the ruling that sided with the state in that case is that it established a principle in the court system that a religious expression or practice is not protected from a state rule, even if the rule serves no vital state interest, so long as that practice is banned for all people. As Justice Alito points out, this bad precedent potentially allows a state to make a rule against the sacramental wine used in Catholic Mass everywhere. The same applies to a state law banning kosher slaughtering of animals or circumcision.

The case of Fulton set up a perfect challenge to Smith, because we have a city policy that directly targets a long-standing religious practice/belief without providing any evidence that it furthers a vital state interest. After all, anyone who wants a kid placed in the hands of a same-sex couple can go elsewhere and indeed is unlikely to seek out Catholic Social Services in the first place. This would have been the perfect time to affirm that governments cannot ban or discriminate against long-standing religious beliefs and practices – you know, the bedrock of our settlement on this continent.

Instead, the majority opinion, written by Chief Justice John Roberts and joined by Justices Kavanaugh and Barrett as well as the four Democrat appointees, focuses on an extremely narrow point: namely, that Philadelphia didn't abide by the rule prescribed under Smith. The Smith opinion states that a government can interfere with religious practice so long as it's done categorically and without exception. In this case, they claim that the city of Philadelphia officially offers individual exceptions to its rules. The problem is that no such exception was ever granted, and the city can now officially erase that provision from the books and then fully operate within the confines of the Constitution based on six justices unwilling to overturn Smith.

As Alito warned, "This decision might as well be written on the dissolving paper sold in magic shops. The City has been adamant about pressuring CSS to give in, and if the City wants to get around today's decision, it can simply eliminate the never-used exemption power."

Given that Alito's concurrence, which is basically a dissent, is 77 pages long, Mike Sacks, a lawyer who covers the courts for WNYW-TV, speculates that Alito originally wrote the majority opinion, which likely included Thomas, Gorsuch, Kavanaugh, and Barrett. However, the theory is that Roberts once again worked with Justice Breyer to peel off Barrett and Kavanaugh. In a rare outcome, Barrett wrote a concurrence, joined by Kavanaugh, to explain why she opposed overturning Smith. Bizarrely, it was joined by Breyer — and only Breyer — from among the liberals.

What is so disturbing about this ruling on religious liberty is that it follows the trend of what we are seeing in the courts with all constitutional liberties – that governments can violate sacred rights so long as they do so equally. We've certainly witnessed this during COVID fascism with many courts ruling that restricting one's breathing or shutting down churches and businesses was OK so long as it was applied equally. Obviously, in the context of the war on religious liberty by the "Rainbow Jihad," governments most certainly will apply their agenda across the board, essentially banning our founding Judeo-Christian values, which according to the Court somehow does not run afoul of the First Amendment.

In reality, the First Amendment was never about equality; it was about protecting one's ability to worship in whatever manner you so choose, so long as it doesn't disturb the peace. In the Northwest Ordinance of 1787, written just before the First Amendment of the Constitution, the Continental Congress provided that "no person, demeaning himself in a peaceable and orderly manner, shall ever be molested on account of his mode of worship, or religious sentiments, in the said territory."

Sec. 3 of the Pennsylvania Declaration of Rights states emphatically, "No human authority can, in any case whatever, control or interfere with the rights of conscience." The notion that Philadelphia can essentially bar adoption licenses to those who believe in the clear definition of marriage and pass constitutional muster – no matter how it's applied – is insane.

In fact, most of the state constitutions at the time of the formation of the nation would likely have forbidden the very homosexual agenda that is being used as a cudgel against religious institutions. For example, the South Carolina constitution permits all religious practice "provided that the liberty of conscience thereby declared shall not be so construed as to excuse acts of licentiousness, or justify practices inconsistent with the peace or safety of this state." Thus, they almost assuredly would have banned today's paganism, which is a religion in all but name, from promoting gay marriage, not those who refuse to provide services. If one feels that times have changed, that is fine, but orienting the law in that direction would require changes to the state and federal constitutions.

Barrett's concurrence, joined by Kavanaugh and Breyer, painstakingly explains how overruling Smith would create problems with other bad prior court decisions and would engender a new rule of judicial construct to replace it. Sadly, this is the excuse the justices will likely give to perpetuate terrible rulings on other issues that are moored in faulty constitutional interpretation in the future. The proper rule is to apply strict scrutiny to any religious liberty challenge, as we do in abortion cases. This is really quite simple.

The specific application of not overruling Smith is right in front of our noses. Under the current ruling, were the case of Jack Phillips to come back before the Supreme Court, the justices would say that Colorado has the right to force him to bake a transgender celebration cake because they apply that rule strictly to everyone. Following the Constitution would net a different result.

This case is also an ominous sign for the growing assault on religious exemptions from coerced vaccination. States could easily point to a categorical rule without any exceptions as solid footing for ignoring religious exemptions.

If this is what a victory looks like, I'd hate to see what a loss would be at the Supreme Court. If this is a conservative Supreme Court, we can only imagine a liberal one.