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.

Alito's 77-page Fulton concurrence has me thinking that Roberts did actually assign him the original majority decis… https://t.co/7ibxjRf5mP

— Mike Sacks (@MikeSacksEsq) 1623941937.0

There's the fact that Breyer put his stamp on Barrett's concurrence that peeled her and Kavanaugh's 4th and 5th vot… https://t.co/xoLH3Yt1e9

— Mike Sacks (@MikeSacksEsq) 1623942313.0

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.

Remember the ‘travel ban’? Lower courts seeking to ‘overturn’ that Supreme Court decision

For several generations, we have been told by the political elites that the Supreme Court stands above the other two branches of government, even when the high court violates the Constitution or claims to decide a broad public policy question squarely within the purview or powers of the other branches. Now, it appears that any lower court can simply issue a ruling more progressive than what the Supreme Court just said, and the other branches feel compelled to abide by that ruling!

Remember when a slew of lower courts created a right to immigrate for the first time and issued unprecedented injunctions demanding that Trump surrender to the courts his control over the right of entry into the United States? Well, we all thought that insanity was put to rest when the Supreme Court ruled in Trump v. Hawaii that the president has unquestionable authority to shut off any or all forms of immigration when he believes it’s detrimental to American interests, as it plainly says in 8 U.S.C. §1182.

Evidently, some of the lower court judges who were overturned by the Supreme Court on this issue are now granting standing to some of the same groups to sue again! U.S. District Judge Theodore Chuang of Maryland ruled last Thursday that a lawsuit can proceed against the travel ban from five countries.

A group of refugee resettlement contractors and other immigration groups are suing because they don’t like the process the administration has set up to allow waivers of the ban. The problem is that the Supreme Court said quite clearly that the president can disallow migration without offering any waivers whatsoever. Chief Justice Roberts could not have been any clearer:

“By its terms, §1182(f) exudes deference to the President in every clause,” wrote Roberts in the majority opinion in Trump v. Hawaii. “It entrusts to the President the decisions whether and when to suspend entry, whose entry to suspend, for how long, and on what conditions. It thus vests the President with ‘ample power’ to impose entry restrictions in addition to those elsewhere enumerated in the INA.” (Emphasis added.)

Yet there is no stigma in the legal profession against lower court judges attempting to obstruct and twist Supreme Court rulings they disagree with. Judge Chuang, without ever mentioning the fact that he himself was overturned on this very issue, brazenly declared that Trump v. Hawaii was only "representing a snapshot in time and does not necessarily preclude a different determination at a later stage of the case on a more fulsome record." From reading most of his opinion, you’d have thought it was the Trump administration that lost in the Supreme Court.

Taking that position to its logical conclusion, a lower court can always find ways that the same question presented in a slightly different case is not governed by the obvious controlling Supreme Court precedent because that SCOTUS case was only “a snapshot in time.”

Liberals are seeking similar lawsuits against the travel ban in their favorite California courts as well. In February, Judge James Donato allowed a similar lawsuit to proceed in the Northern District of California.

Clarence Thomas has warned about the need to end this practice of lower court universal injunctions, which not only violate the separation of powers between the courts and the other branches, but also essentially strip the Supreme Court of its legitimate supremacy over the judicial branch itself. In June 2017, Thomas warned, after the Supreme Court initially removed only part of the lower court injunction against the travel ban, that the forum shoppers would continue to go back to the same repudiated lower courts. “Litigation of the factual and legal issues that are likely to arise will presumably be directed to the two District Courts whose initial orders in these cases this Court has now— unanimously—found sufficiently questionable to be stayed as to the vast majority of the people potentially affected,” warned an irate Thomas during the preliminary stages of the lawsuit.

If these same district judges place another injunction on Trump’s partial immigration moratorium, will he suddenly begin issuing visas to these people unless the Supreme Court steps in yet again? How can the Supreme Court both (wrongly) be regarded as supreme over the other branches but not supreme over its own inferior courts? According forum-shopped judges, they have the power to continuously alter public policy for years until the case reaches the Supreme Court, not only when we know they will be reversed but when they have already been reversed. This is a recipe for a banana republic.

This is part of a broader trend of lower courts “repealing” Supreme Court opinions they don’t like. In one of the most egregious rulings of all time, a California judge said that Trump must continue the discretionary and temporary program of Temporary Protected Status (TPS) because Trump, in the estimation of Judge Edward Chen, has “animus against non-white, non-European immigrants.” SCOTUS already said in Trump v. Hawaii that such considerations cannot be used to block the president’s lawful authority, but the Trump administration refused to delegitimize this ruling.

More recently, two federal judges, one in Oregon and one in Washington, issued injunctions against Trump’s gag rule prohibiting Title X recipients from referring women for abortions. The Supreme Court upheld this exact regulation under Reagan in Rust v. Sullivan (1991), but Judges Michael McShane and Stanley Bastian ignored it.

Lower courts have similarly gutted the Heller decision over the past decade, often citing Justice Breyer’s dissent. Recently, a federal judge in Oregon essentially overturned the landmark Janus decision last year banning forced union dues. Thus, while conservatives have lost marriage, life, and so many cultural issues to the Supreme Court and have unquestioningly accepted those rulings as gospel, liberals respond to the few losses at the high court with, “Hold my beer and let me show you the power of a district judge.”

It’s important to note that the lower courts already won in the travel ban case by successfully forcing Trump to water down his original order twice. The original order prioritized persecuted Christians in the Middle East for refugee resettlement and placed caps on refugees. It was actually upheld by one Massachusetts judge, but the administration wrongly agreed to the notion that another single district judge can shut it down. Even though the Supreme Court’s ruling would easily have covered the original order, were Trump to ever strengthen it, the courts would begin the process again.

Allowing this cancer of lower court supremacy to continue brings irrevocable harm to our country. A liberal legal writer for Slate observed approvingly this week how the “lower courts are lobbying SCOTUS to rein in partisan gerrymandering” and that “while SCOTUS dillydallies, the lower courts are taking action, aggressively overturning gerrymanders across the country.”

The term “lobbying” is quite peculiar to describe a court, but Slate is not wrong in its observation of how lower courts are pushing the Supreme Court rather than being pulled by it. Despite the fact that the Supreme Court has already signaled in a Wisconsin case that the courts shouldn’t get involved in most political gerrymandering decisions and is deciding the ultimate case on the issue within weeks, two federal judges in Michigan and Ohio brazenly declared the GOP maps in both states unconstitutional after the states had been electing congressmen for a decade based on those lines.

Let’s face it: conservatives have done a poor job educating people on the role of the judiciary over the past few generations. They have agreed to the notion that the Supreme Court rules on political issues absolutely. But now, the trend of progressive lower court supremacism has not only contradicted our constitutional system of checks and balances, but has butted heads with Supreme Court supremacism itself. The real truth is that this has never been about a principled belief in judicial supremacism, but rather a pragmatic stratagem of “heads we win, tails you lose” on the part of the Left. If the Trump administration continues to legitimize these decisions, it has nobody else to blame.

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