Tag archives: Supreme Court

In Fulton, the Religious Liberty of Foster Care Providers Hangs in the Balance

by Kaitlyn Shepherd

October 21, 2020

During its last term, the Supreme Court garnered considerable attention by wading into the culture wars over polarizing social issues such as abortion and sexuality. Decisions to strike down a common-sense law requiring abortionists to have hospital admitting privileges and to redefine “sex” to include sexual orientation and gender identity were mourned by conservatives and applauded by liberals.

While secular activists lamented, conservatives celebrated decisions upholding the rights of religious families and schools to participate in neutral tuition assistance programs and requiring foreign organizations to adopt policies opposing prostitution and sex trafficking to receive federal funds to combat HIV/AIDS. The Court will likely remain in the public eye during its current term, when it will hear arguments in Fulton v. City of Philadelphia, a case that will have significant implications for the future of religious liberty and foster care in America. The justices will hear oral arguments in the case on November 4.

The First Amendment provides that “Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof ….” Thus, the Constitution protects religious liberty in two separate but related provisions. The Establishment Clause prevents Congress from favoring any religious denomination at the national level, while the Free Exercise Clause guarantees Americans the right to believe and act according to their religious convictions. Both Clauses also constrain the actions of the states. Prior to 1963, the right to freely exercise one’s religion was somewhat limited. While an individual’s religious beliefs were absolutely protected, his or her freedom to act on those beliefs could be fairly easily regulated.  

In 1963 and 1972, the Supreme Court decided two landmark religious liberty cases, Sherbert v. Verner and Wisconsin v. Yoder. These cases established the strict scrutiny standard, which means that when the government implements a law or policy that burdens someone’s right to free exercise, it must show (1) that it has a compelling state interest that justifies its burden on religious exercise and (2) that its law or policy is the least restrictive means of accomplishing this compelling interest. Because of their robust protection of religious liberty, Sherbert and Yoder ushered in a Golden Age of religious freedom in America.

In 1990, the Court issued an unexpected decision that dramatically changed religious liberty protections. In Employment Division v. Smith, the Court abandoned the strict scrutiny standard and held that the government only needs to show that its law or policy is neutral and generally applicable in order to overcome a free exercise challenge. This “neutral law of general applicability” standard waters down protections for religious liberty by giving the government a lower bar to overcome. The government only needs to demonstrate that the law treats religious and secular groups equally and was not enacted to target religion. Under this standard, religious individuals are rarely successful in court and must prove that they were actively targeted for their religious beliefs to prevail.

In its upcoming term, the Court will consider Fulton v. City of Philadelphia. The decision will impact the rights of religious foster care agencies to speak and act consistently with their sincerely held religious beliefs. One of the plaintiffs in the case, Catholic Social Services (CSS), is a faith-based foster care agency that operates in Philadelphia. When a child enters Philadelphia’s foster care system, the City refers them to one of several foster care agencies. These agencies then evaluate prospective foster parents to certify that they meet state standards. Because of its sincerely held religious belief that marriage is between one man and one woman, CSS considers same-sex couples to be unmarried and is unable to certify them as foster parents. However, if an LGBT-identified couple were ever to approach them (which has never happened), CSS would refer them to another agency that would be a better fit. Nevertheless, Philadelphia’s Department of Human Services has stopped referring children to CSS.

In the lower courts, CSS argued that the City’s actions were neither neutral nor generally applicable and targeted CSS because of its religious beliefs. The Third Circuit Court of Appeals held that there was no First Amendment violation and that Philadelphia did not treat CSS differently because of its religious beliefs. Rather, the court found that Philadelphia was merely engaged in a good-faith effort to enforce its nondiscrimination policy, which “prohibits sexual orientation discrimination in public accommodations.”  

In Fulton, one of the major issues that the Supreme Court will consider is whether it should revisit its decision in Employment Division v. Smith. If the Court revisits and overrules Smith, it will be a major victory for religious liberty that could restore the favorable strict scrutiny standard. However, if the Court declines to revisit Smith, or revisits and upholds Smith, its damaging precedent will become further entrenched in American law, dealing a major blow to religious liberty. The Court’s decision could be influenced by its recent decision in Bostock v. Clayton County, which, as Justice Alito predicted in his dissent, could affect the speech of those who desire to “express[] disapproval of same-sex relationships …”

Allowing religious discrimination against faith-based foster care agencies would not just be a blow to the constitutionally-protected right of religious liberty. It would also be detrimental to the already overburdened foster care system. In states and localities that have forced religious agencies to close, children suffer. For example, after Illinois passed a statute that forced all foster care and adoption agencies to place children with same-sex couples, nearly 3,000 children were displaced from religious agencies that were forced to close, and over 5,000 foster homes were lost. In Philadelphia, the home of a “Foster Parent of the Year” award winner who had been serving needy youth for decades was forcibly closed to foster youth, as were others. After the City ended its contract with CSS, siblings of children who had already been placed by the agency faced the daunting prospective of being forced into separate homes.  

Pennsylvania is not the only state to witness the targeting of religious foster care agencies. In Michigan, an activist couple targeted St. Vincent Catholic Charities, passing four other agencies they could have worked with as they traveled from their home to St. Vincent. Here, referrals had been made. Children in St. Vincent’s care had been transferred to other agencies working with LGBT-identified couples who were interested in adopting children in St. Vincent’s care. And in New York, New Hope Family Services, which has been serving needy children for over 50 years, was informed by the state that it must either change its policy of referring LGBT-identified couples to other agencies or cease its adoption services. A New York District Court judge recently issued an injunction on behalf of the church, preventing the state “from revoking New Hope Family Services’ authorization to place children for adoption.”

In Fulton, the Court stands poised to issue a decision that will have a lasting impact on the religious liberty of foster care agencies and perhaps that of all Americans. While we watch and wait for the Court’s decision, we should pray that God would give the justices wisdom to make the right decision.

Kaitlyn Shepherd is a legal intern with the Policy & Government Affairs Department at Family Research Council.

Judging Amy: The Left’s Proclivity for Believing and Empowering Women Is Limited To Their Own

by Laura Grossberndt

October 20, 2020

Believe women.”

The slogan, born out of the #MeToo movement, was a common refrain during the Senate Judiciary hearings in September 2018 leading up to Brett Kavanaugh’s confirmation to the Supreme Court of the United States. Some even inserted an “all” to make it “Believe all women.” Essentially, the message of “Believe women” was to forsake bias and take women at their word.

During the confirmation hearings for Judge Amy Coney Barrett last week, the “Believe women” refrain was absent. Maybe it shouldn’t have been. Not because any women were accusing the nominee of sexual misconduct (there are no such allegations against Barrett) but because time and again, the Democratic members of the Senate Judiciary—as well as members of the media—refused to take the judge at her word.

Not only did they often refuse to believe Barrett, but numerous journalists and political pundits also violated a list of rules for reporting on female candidates for public office that a coalition of powerful, progressive women had sent to the news media ahead of Democratic presidential nominee Joe Biden’s announcement of his vice-presidential running mate. The list of sexist pitfalls to avoid included:

  • Reporting on a woman’s ambition
  • Reporting on a woman’s likability
  • Reporting on a woman’s appearance or tone of voice
  • Reporting on doubts about a woman’s qualifications, despite her being equally or more qualified than her male peers

Each of the rules listed above were broken during the Barrett confirmation process. This not only reveals inconsistencies between the way the media chooses to report about men and women, but it also reveals inconsistencies between the way the ideological Left insists women ought to be treated and how some of their own number treat more moderate and conservative-minded women. Senator Marsha Blackburn (R-Tenn.), a member of the Judiciary Committee, tweeted in support of Barrett, alleging that the left “doesn’t like women that have their own mind” and said that Barrett is attacked and denigrated because she does not fit their idea of a “perfect woman.”

Here are five ways the ideological Left’s handling of the Barrett hearings exposes their hypocritical inclination to believe and empower only certain women—those who conform to their ideology.

#1: By Not Taking Her at Her Word

At confirmation hearings, the members of the Senate Judiciary Committee question judicial nominees under oath. This is so the Senate can better fulfill its constitutional “advice and consent” role.

Confirmation hearings are meant to entail thorough questioning. But Judiciary Democrats seemed determined to disbelieve Judge Barrett from the start. Senator Richard Blumenthal (D-Conn.) implied that Barrett was dishonestly concealing her personal pro-life beliefs by not including two pro-life petitions that she had signed as a member of her church in her initial 1,800-page disclosure (she included these in her supplemental disclosures, which are common to have). Senator Amy Klobuchar (D-Minn.) doubted whether anyone could ascertain Barrett’s intentions from her sworn statements at the hearings, saying “the only way for the American people to figure out how you might rule is to follow your record and follow the tracks.” Committee members repeatedly asked Barrett if she had any understandings or made any deals with the president, such as voting to end the Affordable Care Act (ACA) or overturn Roe v. Wade. Senator Kamala Harris (D-Calif.) implied Barrett might act as a pawn of the president when she asked whether the judge’s piece commenting on the ACA was a signal for Trump to pick her. Each of the numerous times these doubts were raised, Barrett stressed her judicial independence, personal integrity, and commitment to the rule of law:

I have not made any commitments or deals or anything like that. I’m not here on a mission to destroy the Affordable Care Act. I’m just here to apply the law and adhere to the rule of law.

And again:

I have no mission and no agenda. Judges don’t have campaign promises.

Regarding her integrity as a judge:

I certainly hope that all members of the committee have more confidence in my integrity than to think that I would allow myself to be used as a pawn to decide the election for the American people.

And:

I do assure you of my integrity.

Those who know Judge Barrett best professionally describe her as someone deserving of being taken at her word. Patricia O’Hara, professor emerita at Notre Dame Law School, introduced Barrett at the confirmation hearings, describing her as “fair and impartial.” On the final day of hearings, Laura Wolk, a former student of Barrett’s at Notre Dame and the first blind female Supreme Court clerk, testified on her mentor’s behalf, hailing her as eminently trustworthy: “She is a woman of her word. She means what she says, and she says what she means. When she promised to advocate for me, she commanded my trust.”

During Barrett’s hearings, it was clear that Judiciary Democrats either doubted the judge’s veracity under oath or simply didn’t want to believe her.

#2: By Implying She Doesn’t Have Her Own Mind

Opponents to Judge Barrett’s nomination have had the audacity to imply that she wouldn’t be making her own decisions on the bench. They seem to imagine her functioning as a sort of pawn or proxy “doing the bidding” of a man calling the shots (pick one: the president, her husband, her late mentor Antonin Scalia, the Pope). Insinuations of this nature are highly insulting, as they willfully ignore Barrett’s stellar qualifications as a judge, misunderstand her faith, and disbelieve her own statements under oath that she is intellectually independent and not beholden to anyone or anything but the Constitution. So much for “believing women.”

During day three of the confirmation hearings, Barrett acknowledged that she shares Justice’s Scalia’s judicial philosophy of originalism and textualism. However, she had to clarify multiple times that she should not be mistaken for a carbon copy of Scalia who would always rule in the same manner that he did. As she told Sen. Chris Coons (D-Del.) (emphasis added):

I do share Justice Scalia’s approach to text, originalism and textualism. But in the litany of cases that you’ve just identified, the particular votes that he cast are a different question of whether I would agree with the way that he applied those principles in particular cases. And I’ve already said, and I hope that you aren’t suggesting that I don’t have my own mind or that I couldn’t think independently or that I would just decide “let me see what Justice Scalia has said about this in the past,” because I assure you I have my own mind. But everything that he said is not necessarily what I would agree with or what I would do if I were Justice Barrett. That was Justice Scalia. So, I share his philosophy, but I have never said that I would always reach the same outcome as he did.

Barrett intelligently responded to Judiciary Committee questioning for hours over the course of two days with absolutely no notes in front of her, an impressive feat that few people could match. Those doubting her knowledge, independence, and competence embarrass themselves.

#3: By Objecting To Her Career Success and Aspirations as “Ambition”

The Washington Post ran a story that described Judge Barrett as “unleashing her ambition,” while Slate disparaged her as “a shameless, cynical careerist who believes nobody can stop her.” The article continued, “what’s wrong with Barrett isn’t that she’s too pious, or that she’s submissive in her personal life. It’s that she’s bent on making herself one of the nine most powerful judges in the country.”

It’s hard to imagine such statements being made about a male nominee or a female nominee whose judicial philosophy and policy positions more closely align with the Left. Indeed, the late Justice Ruth Bader Ginsburg has been lauded for her “trailblazing career” and breaking the glass ceiling. It begs the question: why would it be wrong for any woman, especially one as qualified as Barrett, to aspire to sit on the Supreme Court? Furthermore, it’s unclear how Barrett fits the description of “ambitious” besides being so good at her job that someone else noticed and nominated her for the Supreme Court.

Senator Joni Ernst (R-Iowa), a member of the Judiciary Committee and a military veteran, tweeted in response to the Slate article:

This is the kind of sexist garbage women have been dealing with for far too long. Women can be anything we want to be: a farmer, a military officer, a Senator, and yes even a Supreme Court Justice.

#4: By Judging Her by Her Appearance (to a degree that wouldn’t be done to her male peers)

The clothes Barrett wore to her confirmation hearings were neat, professional, and stylish. They looked an awful lot like the clothes countless other professional women on Capitol Hill wear. A male nominee comparatively well-dressed would not have garnered the reactions Barrett’s choice of clothing elicited. And women the Left loves—like Michelle Obama—are praised for their fashion sense. But even something as innocuous as clothes was seized upon by Barrett’s critics as an opportunity to disparage her.

The Daily Beast published an entire article centered on the dress Judge Barrett wore on day one of the confirmation hearings (and no, it wasn’t about where to buy it or “how to copy her look”). The author interpreted Barrett’s choice of clothing as a calculated distraction, saying her dress “projected capability and congeniality” while she did “the bidding” of the president. Here we have a sexist one-two punch of hyper-focusing on a woman’s clothing choice and portraying her as a mindless sycophant, despite abundant evidence to the contrary.

Barrett’s critics have embraced the demeaning caricature of her as a subservient “handmaiden” à la The Handmaid’s Tale. Former congresswoman Katie Hill thought she saw evidence of this false caricature represented in Barrett’s clothing, tweeting on day three of the hearings: “I hate to be someone who judges women on their clothes but I’m sorry ACB’s outfits are all way too handmaids-y.” Hill later deleted the tweet after negative response. Senator Ernst once again tweeted in Barrett’s defense:

The liberal left is attacking Judge Barrett in this way because they can’t attack her on her qualifications or character. No woman should have to deal with this kind of blatant sexism.

#5: By Questioning Her Ability To Parent and Do Her Job

Some on the ideological Left questioned whether Judge Barrett could handle being “a loving, present mom” and a Supreme Court justice. It’s highly doubtful that anyone has ever questioned a male Supreme Court nominee’s ability to be a loving, present father. If a more progressively-minded judge were being nominated for the Court, would the media express comparable concern for her school-aged children? It’s hard to say since Barrett is the first such mother of school-aged children to be nominated.

Slate described Barrett’s inspirational story as “a trap” to trick women into thinking that they “can have it all” and don’t need abortion in order to succeed. On the contrary, more women need to be shown that they shouldn’t have to abort their children in order to have a fulfilling life or career. Barrett might seem like a unicorn for now, but only because she’s blazing a path for other women to follow.

A True Role Model

Justice Ginsburg recalled being asked when she thought there would be enough women on the Supreme Court. Her reply? “When there are nine … There’d been nine men, and nobody’s ever raised a question about that.” This famous quote by Ginsburg has been hailed by her admirers and many on the ideological Left. Yet, when a conservative woman is nominated to the Court, it is clear that they would prefer a male judge who shares their ideology than a conservative female judge who has sworn that she will interpret the law rather than legislate from the bench.

Judge Amy Coney Barrett is highly qualified to sit on the Supreme Court. Instead of the inconsequential—and, at times, sexist—things her critics have harped on, consider this list of accomplishments and accolades. In other words, things that truly matter:

  • First in her class at Notre Dame Law School, where she was executive editor of the Notre Dame Law Review 
  • Clerked for Judge Laurence H. Silberman of the U.S. Court of Appeals for the D.C. Circuit and for Associate Justice Antonin Scalia of the U.S. Supreme Court
  • Worked as an associate at Miller, Cassidy, Larroca & Lewin and then at Baker Botts in Washington, D.C.
  • Former visiting associate professor and John M. Olin Fellow in Law at the George Washington University Law School
  • Former visiting associate professor of law at the University of Virginia
  • Professor of law at Notre Dame Law School
  • Member of the American Law Institute (ALI)
  • Judge on the U.S. Court of Appeals for the Seventh Circuit
  • Endorsed by all of her fellow Notre Dame law professors in 2017
  • Endorsed by all of her fellow 1998 Supreme Court clerks in 2017
  • Rated by the American Bar Association as “well qualified” to serve on the Supreme Court

Patricia O’Hara of Notre Dame Law School summed up Barrett as a judge thus: “In her three years as a judge on the Seventh Circuit, her opinions have been characterized by the same quality as her scholarship — intellectual rigor, painstaking analysis, clarity of legal reasoning and writing. Accompanied by her deep commitment as a jurist to apply the law to the facts before her.”

Throughout her life and career, Barrett has exemplified what we should want in a Supreme Court nominee. What would this confirmation process have been like if everyone had spent less time analyzing her wardrobe and more time looking at her qualifications and taking her at her word? I guess we’ll never know.

Ideological progressives and the media talk a big talk of “believing women” and empowering them. But their treatment of Supreme Court nominee Amy Coney Barrett in recent days signals to more moderate and conservative-minded women that progressives only believe and empower certain women who fit their preferred mold, to the exclusion of others.

However, to the thousands of women who don’t fit this preferred mold, Judge Barrett truly is a role model.

Senate Democrats: Tone-Deaf on Religious Freedom

by Travis Weber, J.D., LL.M.

October 14, 2020

Throughout the last several days of Senate Judiciary Committee Democrats using Amy Coney Barrett as a political prop for their re-election campaigns (and antagonism toward President Trump), Senator Mazie Hirono from Hawaii turned in one of the worst performances on day three of the confirmation hearing—exhibiting a tone-deafness to religious freedom that was almost bizarre.

Among her list of cases on a giant poster-board supposedly showing that the sky would fall if Barrett is confirmed, Hirono included South Bay United Pentecostal Church v. Newsom, which she claimed is putting “COVID safety measures” at risk.

Yet, South Bay is a case in which the Supreme Court refused to step in and protect a church from being discriminated against under coronavirus restrictions, after California continued to treat religious worship gatherings less equally than “factories, offices, supermarkets, restaurants, retail stores, pharmacies, shopping malls, pet grooming shops, bookstores, florists, hair salons, and cannabis dispensaries” under its approach to the coronavirus.

Why is Hirono using a case in which a church is being shut down to claim that coronavirus restrictions are at risk? Either she devalues religious freedom that much, or is blind to the needs of such churches.

But that church’s pastor, Amada Huizar, is not. He has had to face the very real and serious consequences of what has happened because churches have been unconstitutionally shuttered around the country: harm to communities and the people who live in them. Pastor Huizar recently joined FRC President Tony Perkins on Washington Watch to share the incredible life-and-death story of his decision to reopen his church, and spoke at Freedom Sunday, an event held to call on churches to reopen in the face of unconstitutional restrictions on them around the country.

Senator Hirono may simply be tone-deaf to the religious freedom rights of Pastor Huizar and others like him. The alternative is that she thinks so little of the First Amendment that she’s willing to use a case suppressing a church’s rights in her bid to block Judge Barrett’s confirmation. Either possibility is dismal in terms of respect for our First Amendment and the Constitution.

Roe Isn’t Super … or Super-Precedent

by Katherine Beck Johnson

October 13, 2020

In the second day of Judge Amy Coney Barrett’s Senate confirmation hearing, many members of the Senate Judiciary Committee, particularly Sen. Amy Klobuchar (D-Minn.), questioned the Supreme Court nominee about the concept of “super-precedent.” Barrett has previously written that seven cases are currently understood by legal academics as super-precedent, including Brown v. Board of Education. She defined super-precedent as “cases that no justice would overrule, even if she disagrees with the interpretative premises from which the precedent proceeds.” Barrett said at the hearing that, according to this definition, Roe v. Wade does not qualify as super-precedent.

When asked why Brown is super-precedent and Roe is not, Barrett explained that Brown is super-precedent because the Supreme Court decided that the “separate but equal doctrine” is unconstitutional and because the American people have accepted the Court’s decision as settled law. Segregation is a horrible stain on our nation’s history. Thankfully, it is now accepted that racism and segregation is a moral evil that will no longer be tolerated in our country. Because there are no legal challenges advocating for segregation, Brown is clearly settled law.

Barrett said Roe does not qualify as super-precedent because the American people have not accepted this Supreme Court decision that legalized abortion in all 50 states. She is right. Many American people believe abortion is a moral evil that should not be tolerated in our country. The Republican Party platform supports a human life amendment to the Constitution clarifying that the unborn are protected by the 14th Amendment. The March for Life, which draws hundreds of thousands of people from all over the country, takes place every January in Washington, D.C. on the anniversary of Roe.  

Quite significantly, a number of states have passed strong pro-life laws in recent years, and there are also numerous lawsuits currently challenging abortion.

Last year, Alabama passed a comprehensive law affirming and protecting human life at all stages—a model for how to fully protect life. States have defunded abortion and abortionists. Other states like Colorado are proposing ballot measures to protect life this fall. Certain states like Nebraska have passed dismemberment bans, and others have passed laws protecting the dignity of the remains of the unborn. Arkansas, Georgia, Iowa, Kentucky, Louisiana, Mississippi, and Ohio have all passed heartbeat bills. These bills seek to prohibit abortion when a heartbeat can be detected, which can be as early as six weeks into pregnancy. States have passed laws that aim to protect the targeting of children with Down syndrome in the womb or other special needs. States have passed laws protecting children from being aborted simply because of their race or gender. The eugenic act of ending children’s lives based on their identity is another reason why many Americans refuse to accept Roe as settled law.

By contrast, no major party has a platform advocating for segregation. No states are calling for segregation to be legalized. There is no annual march in support of segregation. The notion of “separate but equal” is viewed by Americans as being unconstitutional. Therefore, Brown deserves to be deemed super-precedent.

While our country has overcome the evil of segregation, the stain of abortion is still with us. Many Americans long for a day when abortion’s unconstitutionality is settled law, and the most vulnerable among us are protected under the law. Until that day, we will continue to fight for the unborn to have the right to life. As long as Americans refuse to accept it, Roe will remain unsettled law that does not deserve to be considered super-precedent. Judge Amy Coney Barrett is correct when she says Roe v. Wade is not super-precedent.

The Left’s (Real) Issue with Amy Coney Barrett

by Joseph Backholm

October 13, 2020

Those who oppose President Trump’s nomination of Amy Coney Barrett to the Supreme Court understand that Trump is basically starting on third base. She was confirmed to the 7th Circuit Court of Appeals only three years ago, which means she was recently vetted and most of the Republicans have already voted to confirm her. Even Mitt Romney seems amiable. If Trump didn’t have the votes to confirm quickly, he wouldn’t have nominated her.

Furthermore, there’s a political risk in opposing her as aggressively as they might want. Mrs. Barrett is about to be the most famous soccer mom in America, and if they treat her the way they treated Brett Kavanaugh, that won’t be received well. They may not want to give Trump the chance to run to the defense of America’s most famous soccer mom. But the benefits of decency might be outweighed by the need for outrage. They might give Barrett the Kavanaugh treatment regardless of how it looks because their base may insist on it.

The base of the Democratic Party is very, very angry. They want to see their rage reflected in those they sent to Washington, D.C. If the Senate simply acknowledges that Barrett has the votes and decides to take the high road, that could be interpreted as weakness and an unwillingness to fight. So the dilemma for Senate Democrats is this: do we repeat the Kavanaugh spectacle and risk alienating suburban women, or do we act like adults and risk alienating our base?

Whatever degree of outrage we see, it is not artificial. Despite the politics, they aren’t pretending to be angry and it isn’t a game. They’re genuinely upset.

They’re upset about abortion. Whatever accusations may surface about the puppies she has tortured and the secret racism her adoption of black kids is clearly trying to hide, they aren’t really worried about puppies and racism. They’re terrified that Roe v. Wade will be overturned. Roe v. Wade is to the Left what John 3:16 is to Christians; it’s the promise that no matter what happens in life, it’s not a permanent problem. The prospect of losing Roe is more than simply a difference in policy.

But that’s not all. They are also concerned that well into the future, people will be able to do and say things they object to. They are concerned that bakers and florists who prefer not to decorate for same-sex weddings will retain the freedom to choose. They are also concerned that Supreme Court decisions like Citizens United will allow people to say things they dislike without restrictions. The world they envision is “tolerant,” but they can’t create a “tolerant” world if people are allowed to do and say things they view as “intolerant.” If people retain the freedom to do and say things they dislike, the world they long to see can’t be realized. That world requires them to control the Supreme Court so that the First Amendment protects only the freedom of worship—not the freedom of religion—and only sometimes guarantees the freedom of speech, but definitely not when it’s “hate speech.”

But there’s a final point as well that makes the appointment of a young, devout Catholic “originalist” especially galling. It is foreseeable that Amy Coney Barrett would be on the Supreme Court for 30 years or more. This is troubling because many on the Left sincerely believe that people like her are on the verge of extinction. In their world, religious conservatives are a small and dwindling minority who will simply disappear with the passage of time.

When they sing John Lennon’s “Imagine,” they actually imagine it. They see growing secularization as proof that Lennon’s world with no countries, no wars, and no religions is just around the corner. In that world, everyone will be happy. In that world, people like Amy Coney Barrett are on the ash heap of history, not on the Supreme Court. Barrett isn’t just a Supreme Court nominee with a different judicial philosophy, she represents a renewal of ideas that the Left wants to believe are on the verge of extinction.

Politically, they understand that this nomination is likely to be confirmed, but they will not go quietly into that good night, because Amy Coney Barrett represents a value system they believe is the source of all wars, bigotry, and substance abuse issues in the LGBT community. They believe she will cause careers to be ruined by unwanted pregnancies and deaths from back-alley abortions. They believe it is a matter of life and death—that’s why they will act like it’s a matter of life and death.

The Fight Over Judicial Tyranny Is Asymmetrical

by Quena Gonzalez

September 25, 2020

The late Justice Ruth Bader Ginsberg has not yet been laid to rest, but the political war over the vacant Supreme Court seat has already been joined. And for good reason. Both sides see the next Supreme Court appointment as an issue of existential proportions, but that obscures the central fact that their goals are asymmetrical:

The Left fears losing control of the Court’s super-legislative powers, while the Right seeks merely to neutralize them.

The ever-escalating war over Supreme Court picks has become a proxy fight over divisive issues like abortion, and for good reason. A supine Congress—under both parties—has steadily ceded its authority to the administrative state, and to activist judges, by failing to legislate or by passing broadly-written statutes that require interpretation and invite judicial review of their application. And activist judges have been happy to oblige, aided and abetted by the Left’s strategy to deploy judges as “super legislators” to force pet policy outcomes.

The solution is to defang the courts, and on this point there is some very good news for my friends on the Left: Reducing the courts’ over-weaning legislative power by appointing solid, originalist justices has been the right’s project since the 1980s. This will have the added benefit of increasing the Court’s reputation, as people observe modest jurists who follow the law instead of making it up as they go. It’s a win-win!

The Left should take heart that the Right’s project is not judicial annihilation but de-escalation, returning the debate over contested issues to the Congress and to the states, where such matters can (and ought to) be contested with electoral accountability.

And to the Oligarchy for Which It Stands

by Ben Householder

August 17, 2020

The average American would likely say that our country is a democracy, ruled by the people. Historians would explain that it is a constitutional democratic republic, ruled by the representatives of the people, whose power is defined and constrained by the Constitution. Many cynical observers, particularly in and around Washington, D.C., might argue that it is really a bureaucracy, ruled by the endlessly expanding regulatory agencies.

In reality, however, in many cases nine unelected individuals who hold their positions for life can effortlessly overturn, with a simple majority vote, the will of the people, their representatives, and the executive agencies—thwarting our constitutional structure itself. A government where that is true can only be described as an oligarchy.

All governing bodies tend to work towards the expansion of their own power. It is no surprise that presidents try to overstep their authority, that regulatory agencies continually expand, or that the federal government tries to encroach on the powers of the states.

The U.S. Supreme Court, however, has assumed a level of authority that significantly alters the contours of our constitutional structure and threatens the very notion of our republic. The Oxford English Dictionary defines “republic” as “a state in which power rests with the people or their representatives.” Accordingly, Article I, Section 1 of the U.S. Constitution explicitly places “all legislative power granted herein” into the hands of Congress. The representatives of the people were intended to wield the power over the content of the law, limited only by the Constitution itself. This is far from being the case today.

The Supreme Court has demonstrated that it is willing and able to successfully oppose both Congress and the direct will of the people. Consider the example of the Religious Freedom Restoration Act (RFRA), which was perhaps Congress’ strongest effort to regain its power from the clutches of the judiciary. The act was unanimously passed by Congress and signed by President Clinton in response to the 1990 case of Employment Division v. Smith, in which the justices limited religious freedom in a manner that alarmed much of the American public. The law was meant to provide a more expansive definition of religious freedom.

However, the will of our elected representatives in the House and Senate, in tandem with that of the president, proved no match for six justices, who struck down aspects of RFRA in the 1997 case of City of Boerne v. Flores on the grounds that it contradicted their earlier opinion and exceeded Congress’s enforcement authority under the Constitution. Justice Kennedy, in the majority opinion, brazenly asserted judicial supremacy, saying that “[w]hen the political branches of the Government act against the background of a judicial interpretation of the Constitution already issued, it must be understood that in later cases and controversies the Court will treat its precedents with the respect due them under settled principles … and contrary expectations must be disappointed. It is this Court’s precedent, not RFRA, which must control.” In other words, the justices ruled that decisions of the Court supersede those of Congress.

The Supreme Court hasn’t hesitated to overturn the direct will of the American people on other issues either. The overwhelming majority of Americans support the idea of term limits for Congressmen. However, when 23 states passed term limit legislation—15 of them by referendum—five justices overturned the will of those millions of voters. In the 1995 case of U.S. Term Limits, Inc. v. Thornton, the Court ruled that states cannot add requirements to their Congressmen beyond those prescribed by the Constitution. In his heated and potent dissent, Justice Thomas said:

It is ironic that the … majority … defends the right of the people of Arkansas to ‘choose whom they please to govern them’ by invalidating a provision that won nearly 60% of the votes cast in a direct election and that carried every congressional district in the State. … Nothing in the Constitution deprives the people of each State of the power to prescribe eligibility requirements for … candidates … And where the Constitution is silent, it raises no bar to action by the States or the people.

Nevertheless, five justices disliked the idea of term limits and ignored the direct will and votes of the citizens who opposed them. This is not democratic at all.

Examples of similar cases abound. Just this year, in the case of Bostock v. Clayton County, the Supreme Court decided to dramatically alter the Civil Rights Act of 1964 by expanding the obvious meaning of “sex” to include “sexual orientation” and “gender identity.” In this case, the Court was obstructing the will of the people by tampering with a legislative and not a constitutional provision, and if Congress wishes, it can pass a law responding to Bostock. Senator Josh Hawley of Missouri accurately described the majority opinion as an “historic piece of legislation.”

It is clear that in many cases, the justices of the Supreme Court have openly transformed themselves into legislators. On certain issues, the judiciary has wielded absolute and unquestioned power over the content and meaning of the law. Whether this is to be celebrated or mourned is a question for another time. However, we can no longer deny it is occurring. We may not have fully lost the notion of our republic as of yet, but we are on the treacherous road toward doing so.

Ben Householder is an Honors student at Regent University.

The Silence of the Libs in Bostock

by Peter Sprigg

July 14, 2020

I, together with colleagues, have already commented several times on the outrageous opinion authored by Supreme Court Justice Neil Gorsuch in the case of Bostock v. Clayton County. (See an initial response co-authored by Mary Beth Waddell, another here, and separate pieces analyzing the problems with the decision regarding sexual orientation and gender identity.)

Gorsuch, together with Chief Justice John Roberts and the Court’s four most liberal justices (Ginsburg, Breyer, Sotomayor, and Kagan), ruled that the prohibition on discrimination “because of … sex” found in the Civil Rights Act of 1964 extends also to discrimination based on “sexual orientation” and “gender identity.” The decision leapfrogged the democratic process by granting to homosexual and transgender persons special protections not granted by a majority of states nor by Congress, despite proposals to do so going back decades.

The three dissenting justices produced two dissenting opinions. Justice Samuel Alito wrote one with which Justice Clarence Thomas joined, while Justice Brett Kavanaugh wrote separately. They did a thorough job of dismantling Justice Gorsuch’s astonishing claim that he was merely interpreting the plain language of the 1964 statute in granting this sweeping victory to the LGBT movement. Between them, the 82 pages of dissent were two and a half times as long as the 33-page Gorsuch opinion.

But what I found in some ways even more interesting was what the four liberals who concurred with Gorsuch said.

Nothing.

Not one of the Court’s four most liberal justices wrote a single word in concurrence. None saw fit to wax eloquent about what the decision would mean for Americans who identify as LGBT—ironically, only the two dissenters did that. Justice Alito wrote:

The updating desire to which the Court succumbs no doubt arises from humane and generous impulses. Today, many Americans know individuals who are gay, lesbian, or transgender and want them to be treated with the dignity, consideration, and fairness that everyone deserves.

Justice Kavanaugh went even further, implying that if he were a legislator, he would have voted for a bill to do what the Bostock decision did:

[I]t is appropriate to acknowledge the important victory achieved today by gay and lesbian Americans. Millions of gay and lesbian Americans have worked hard for many decades to achieve equal treatment in fact and in law. They have exhibited extraordinary vision, tenacity, and grit—battling often steep odds in the legislative and judicial arenas, not to mention in their daily lives. They have advanced powerful policy arguments and can take pride in today’s result.

Yet the four liberal justices, Ginsburg, Breyer, Sotomayor, and Kagan, wrote not a single word.

In my opinion, there is a profound cynicism in that. The silence of the liberals confirms, more eloquently than anything they could say, the chief criticism of their philosophy. To them, only the result matters, not the reasoning.

The exact same thing happened five years ago in the Supreme Court’s last “landmark” decision on LGBT rights—Obergefell v. Hodges, in which the Court declared unconstitutional state laws defining marriage as the union of one man and one woman. In that 5-4 decision, the Court’s “swing vote,” Anthony Kennedy, wrote a nebulous opinion declaring, “The Constitution promises liberty to all … to define and express their identity.” All four of the dissenting justices wrote separate opinions detailing their objections; but not one of the liberals wrote a concurring opinion.

A few days later, a writer in the liberal New Republic hit upon why, pointing out that Kennedy’s “opinion in Obergefell is, logically speaking, kind of a disaster.” The writer, Brian Beutler, believed that “his ultimate holding was the correct one. But the price of admission for Court’s four liberals was to join a muddled, unconvincing opinion.”

Beutler seemed to shrug and say there was no other choice:

But as long as Kennedy is the Court’s “swing” justice, he will frequently be the liberal justices’ best hope for good outcomes, and they will feel compelled to defer to him, even if he’s unable to marshal arguments that stand the test of time.

Justice Kennedy has now retired—but in Bostock, it was Justice Neil Gorsuch who did the liberals’ dirty work for them.

Justice Gorsuch’s Bostock opinion was of a completely different style from Kennedy’s in Obergefell. Gorsuch claimed to be strictly applying the principles of “textualism,” a judicial philosophy most closely associated with the late Justice Antonin Scalia. According to Gorsuch, his decision “follows ineluctably from the statutory text.”

Of course, Justice Samuel Alito demolished this claim in his dissent, writing:

The Court’s opinion is like a pirate ship. It sails under a textualist flag, but what it actually represents is a theory of statutory interpretation that Justice Scalia excoriated––the theory that courts should “update” old statutes so that they better reflect the current values of society.

In any case, the Supreme Court’s four most liberal justices are not “textualists.” A writer for Slate, Richard L. Hasen, expressed the liberal contempt for “textualism” and its sibling “originalism” in 2018, decrying the “bankruptcy” of “a kind of formalism which resuscitates the moribund idea that judges do not make law in part through value judgments, but instead find law through neutral principles.” (The Constitution, I guess, is “moribund”—either dying or obsolescent.)

However, Hasen noted, “liberal lawyers trying to get progressive results at the Supreme Court have already begun trying to pick off conservative justices through a calculated embrace of the theories.” In fact, he calls this “the model for what liberal lawyers are going to need to do,” noting that “because at least some of the [conservative] justices actually believe they are applying neutral principles … , they can be persuaded to vote against conservative positions . . .”

This approach seems to have worked in the Bostock case, “picking off” both Justice Gorsuch and Chief Justice John Roberts.

The complicity of the four liberal justices in this cynical strategy is demonstrated by their silence.

SCOTUS Delivers for Religious Schools

by Joseph Backholm

July 10, 2020

The Supreme Court had some misses this term, but not when it comes to religious schools. Two decisions in the past two weeks have greatly improved the landscape for religious education, including Christian education.

In Espinoza v. Montana Department of Revenue, the Court said religious schools cannot be excluded from that state’s private school tax-credit program. Previously, the Montana Supreme Court, citing a state constitutional provision known as a Blaine Amendment, said that religious schools could not be the beneficiaries of a public tax benefit—because they are religious. However, the U.S. Supreme Court said that provisions excluding religious schools solely because they are religious violated the Free Exercise Clause of the First Amendment.

In doing so, the Court again emphasized that the Constitution does not require government and religion to remain disconnected in every respect, only that government treat every religious organization and faith similarly.    

The impact of this decision is significant. Currently, 37 states have language similar to Montana’s anti-aid Blaine Amendment. But 26 states have school choice programs in the form of vouchers, tax credits, or education savings accounts. Until last week, parents in most of the 26 state school choice programs were prohibited from using them to attend a Christian school. No longer.

In addition to expanding opportunities for school programs that already exist, parents and churches in states with no school choice laws now have reasons to start that conversation in their state legislature. Not only does this expand options for parents, it provides opportunities for churches to start new schools.   

In the second piece of good news, the Supreme Court affirmed the right of religious schools to make employment decisions free of government intrusion. In Our Lady of Guadalupe School v. Morrissey-Berru, former teachers had sued two religious schools claiming that they had been discriminated against when they were released from their jobs. The Court held that the First Amendment prohibited the Court from even hearing the teachers’ claims. Why? Because if a court were to regulate how religious organizations hired and fired, it would effectively be determining how a religious organization is run.

In a 7-2 decision, the Court said such oversight was outside their constitutional jurisdiction. Specifically, they said that these teachers fell under a “ministerial exception” to non-discrimination laws which had previously been used to protect a church’s right to hire and fire ministers. 

As a result of this decision, religious schools may develop a new habit of describing Christian educators as ministers in their employment documents. Regardless, the Supreme Court has again recognized the right of religious organizations to be religious, free from the demands of a swiftly moving cultural tide. 

Providentially, at a moment where the need for cultural renewal has never been greater, the opportunity for Christian education has never been better.

Joseph Backholm is Senior Fellow for Biblical Worldview and Strategic Engagement at Family Research Council.

The Court for the Common Good?

by Katherine Beck Johnson , Arielle Leake

July 6, 2020

The recent ruling in Bostock v. Clayton County has once again brought the judiciary’s role to the forefront of public discussion. As Justice Alito pointed out in his dissent, what the Court did in Bostock was legislate. By redefining sex to mean “sexual orientation” and “gender identity,” they changed the meaning and application of the 1964 Civil Rights Act without Congress even lifting a finger. However, this is not the first time that the Court has overstepped its bounds as the independent judiciary. In Obergefell v. Hodges, the Court took it upon itself to redefine “marriage.” In Roe v. Wade, they essentially created a “constitutional right” to have an abortion.

What is the proper role of the courts? President Reagan summed it up well in his speech at Justice Anthony Kennedy’s swearing-in:

The role assigned to judges in our system was to interpret the Constitution and lesser laws, not to make them. It was to protect the integrity of the Constitution, not to add to it or subtract from it—certainly not to rewrite it. For as the framers knew, unless judges are bound by the text of the Constitution, we will, in fact, no longer have a government of laws, but of men and women who are judges. And if that happens, the words of the documents that we think govern us will be just masks for the personal and capricious rule of a small elite.

Each of the three federal branches is equal, independent, and tasked with fulfilling its role under the Constitution. According to Article III of the Constitution, the judicial branch’s role is to interpret and apply the “Constitution, the laws of the United States and treatises made, or which shall be made, under their authority.” The Court checks the other two branches through judicial review. However, its primary function—as the Framers intended and as evidenced by the Constitution, The Federalist Papers, and other documents from that time—is to act as the federal government’s enforcement arm by applying the laws. It is not the job of unelected judges to make laws or change laws, as they have done in Bostock, Roe, and Obergefell. Instead, they are charged with basing their judgments on the objective meaning of laws and the Constitution.

Originalism and textualism are usual tools of judicial interpretation supported by many conservatives. However, there is a new theory beginning to emerge. The theory was proposed by Adrian Vermeule, a conservative professor of constitutional law at Harvard, and has been labeled “common-good constitutionalism.” He describes this approach as being “based on the principles that government helps direct persons, associations, and society generally toward the common good.” He advocates for reading into the “majestic generalities and ambiguities” of the Constitution, principles that advance the “common good.” Rather than focusing on the individual, he says the focus would be on a “powerful presidency ruling over a powerful bureaucracy” that will advance society’s needs as a whole, even if it overrides an individual’s private rights. Vermeule says originalism has served its purpose, and now conservatives should begin advocating this “authoritative rule for the common good” to guarantee that ideas such as life, family, and natural marriage are elevated and promoted in society. He says this view has a basis in the Constitution, but instead of being wedded to the original meaning, judges and other government officials will read morality into the text.

It is important to think about all of the implications of various judicial philosophies. While common-good constitutionalism has not become mainstream yet, it is beginning to pick up followers in conservative legal thought—especially after Justice Gorsuch’s disappointing holding in Bostock. Yet, many staunch originalists and textualists have fought back against Professor Vermeule’s theory, arguing that a judge must always remain neutral. It is too soon to know whether a new era in conservative judicial interpretation has arrived.

Katherine Beck Johnson is Research Fellow for Legal and Policy Studies at Family Research Council.

Arielle Leake is a Policy & Government Affairs intern at Family Research Council.

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