The Court to the Rescue Again? Not Quite

The Supreme Court has gone to the rescue of Catholic Social Services (CSS) in Philadelphia as it went to the rescue of Jack Phillips, the Master Baker in Colorado. (Fulton v. Philadelphia) Phillips did not wish to endorse, through his arts, a same-sex marriage. The CSS had been denied a license for arranging the adoption of children or their placement with foster parents because it would not assign children to same-sex couples.

But in both cases the Court went to the rescue by finding a refined fault in the laws that barred discrimination based on “sexual orientation.” Those supposed defects, though, may be readily repaired, which is why Jack Phillips is back in the courts, as the war on him is unrelenting, and it is a near certainty the CSS will be back in the courts again, fighting its battles.  Justice Alito asked then, “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 Services v. Smith (1990), an opinion that has been curiously, and to my mind, unjustly reviled, even by some of his best friends. But the judges may be distracted by illusions if they think the problem will be solved by overthrowing the Smith case. The judges would find, rather, that they will be going around in circles once again, but different circles.  And once again they will not be touching the central issue of substance that continues to govern these cases.

The Smith case involved two “drug counselors” who were fired because they had been using peyote at a Native American religious ritual. They filed for unemployment compensation but were refused, for they had lost their jobs because they had broken the law.  We don’t give unemployment compensation, say, to safecrackers when their business turns bad.

And so the question is whether the laws barring the use of drugs would be as defensible as the laws barring theft.  The laws on drugs are widely challenged, and they have been changed in many places. But until they are, the question is whether the religious may be “accommodated” by being exempted from a law that governs everyone else.  There has been no provision, for example, to exempt the religious from the laws that bar discrimination based on race. And as the Supreme Court long ago explained, the law would not permit a widow to be burned on a funeral pyre even if it were done under a religious ritual.

Justice Scalia drew on a long line of precedents, and his holding may be summarized in this way: If a statute was one of “general application” – if it were directed to a legitimate purpose (say requiring social security cards); and 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 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 and prosaic.  That course ran the risk, as Scalia said, of making each man a “law unto himself.”

RFRA has given the judges a useful tool: that when the laws seriously tread on religious freedom, are they directed to a “compelling interest,” and could they be more narrowly tailored to achieve their legitimate ends?  Actually, that is a test that should come into play for any law, touching any dimension of our personal freedom.

That rule, sprung from Congress, came in response to Scalia’s opinion, and it is quite compatible with his holding.  If the judges now tried to sweep past his judgment in Smith, they would simply find themselves back again with the question that Scalia was trying to settle: Would they really be prepared to give exemptions, as Scalia said, when the law collides with anyone’s religious beliefs?

That problem has been made all the deeper by the fact that the Court has long ago drifted from any demanding sense of what constitutes “religion”:  There is no need to make a place for God or for a body of doctrine. And the judges, at one point, accepted passions powerfully held as the functional equivalent of religious conviction.  Justices Gorsuch and Alito did not help matters when the case of the Masterpiece Baker inspired them to offer this soaring sentiment: “it must be the proudest boast of our free exercise jurisprudence that we protect religious beliefs that we find offensive.”

And so now let us suppose that, instead of the Masterpiece Baker, we had a baker drawn from the fundamentalist circles of the old Bob Jones University.  He earnestly finds in Scriptures a need to separate the races.  He refuses now to make a cake, not for a same-sex wedding, but an interracial wedding.  It is unthinkable that any court in the land would uphold such a claim.

What it reveals, finally, is that these cases are not really about religious “beliefs.”  They are about same-sex marriage. Why is it not legitimate to punish people who bear objections to same-sex marriage as we punish people who make discriminations based on race?   In the end, that is the question of substance in these cases.

But conservative jurists have given us a conservative jurisprudence that takes pride in avoiding the moral substance of these cases. Instead of defending natural marriage, they will argue over whether the decision should be made by judges or voters.  The Left makes the moral arguments and drives the culture war.  And instead of showing what is false in those arguments, the conservatives offer, as the way of countering them, a high-minded avowal to shun moral reasoning altogether.

This column is adapted from the introductory essay of a new journal, Anchoring Truths, part of the program on natural law at the James Wilson Institute.

Hadley Arkes is the Ney Professor of Jurisprudence Emeritus at Amherst College and the Founder/Director of the James Wilson Institute on Natural Rights & the American Founding. He is the author of Constitutional Illusions & Anchoring Truths: The Touchstone of the Natural Law. Volume II of his audio lectures from The Modern Scholar, First Principles and Natural Law is available for download. His new book is Mere Natural Law: Originalism and the Anchoring Truths of the Constitution.