WEBVTT - Court Takes Case That Could Enhance Religious Rights 0:00:00.560 --> 0:00:05.360 This is Bloomberg Law with June Grasso from Bloomberg Radio. 0:00:06.240 --> 0:00:09.320 The Supreme Court has accepted a case that could change 0:00:09.360 --> 0:00:13.720 the landscape for religious rights and strength and First Amendment protections. 0:00:14.280 --> 0:00:18.000 The Court is being asked to overturn boundaries established thirty 0:00:18.079 --> 0:00:21.840 years ago. In a landmark decision, the justices will disside 0:00:21.840 --> 0:00:26.160 whether Catholic Social Services can be excluded from Philadelphia's foster 0:00:26.200 --> 0:00:29.680 care system because the group won't place children with same 0:00:29.720 --> 0:00:33.239 sex couples. My guest is Richard Garnett, a professor at 0:00:33.240 --> 0:00:37.360 Notre Dame Law School. Why is this case important enough 0:00:37.440 --> 0:00:40.800 for the Supreme Court to have taken it? Yeah, well, 0:00:40.800 --> 0:00:43.199 that's that's always the big question in these issues. You know, 0:00:43.240 --> 0:00:46.080 the standard line is that they don't take cases just 0:00:46.120 --> 0:00:48.239 to pat the lower courts on the heads. Often it 0:00:48.240 --> 0:00:50.640 means to something about the decision that's caught their attention. 0:00:50.680 --> 0:00:53.120 I think the most straight forward answer is that there's 0:00:53.159 --> 0:00:57.200 a disagreement among the federal courts of appeals regarding a 0:00:57.280 --> 0:01:01.080 fairly technical question of First him in doctrine. You have 0:01:01.200 --> 0:01:04.280 the lower court in this case agreeing with the Ninth 0:01:04.280 --> 0:01:07.840 Circuit out West on one way to interpret some of 0:01:07.840 --> 0:01:10.560 the Supreme courts precedents, and then you have several other 0:01:11.000 --> 0:01:13.120 courts of appeals that have lined up on the other side. 0:01:13.160 --> 0:01:16.280 And that's one of the sort of standard situations when 0:01:16.319 --> 0:01:18.959 the Justices will weigh in when they need to clear 0:01:19.040 --> 0:01:21.040 up a disagreement among the lower courts. So I think 0:01:21.040 --> 0:01:25.280 that's the most straightforward possibility. A second possibility is intriguingly 0:01:25.760 --> 0:01:29.240 presented by another one of the questions presented in the briefs, 0:01:29.240 --> 0:01:32.080 and that is whether the Supreme Court should take another 0:01:32.160 --> 0:01:36.600 look at this thirty year old decision called Employment Division 0:01:36.720 --> 0:01:40.640 versus Smith, which is kind of the basic foundational Supreme 0:01:40.680 --> 0:01:44.880 Court precedent when it comes to exemptions for religious exercise. 0:01:45.440 --> 0:01:48.440 And you know, scholars have been criticizing the Smith decision 0:01:48.680 --> 0:01:50.880 ever since the day it was announced, and at least 0:01:51.200 --> 0:01:54.080 thirty years ago, there was agreement among many scholars on 0:01:54.160 --> 0:01:57.120 the political right and the political left, although some of 0:01:57.160 --> 0:01:59.440 those views have kind of migrated over time. But if 0:01:59.440 --> 0:02:02.320 they want to, the Justices could use this case as 0:02:02.360 --> 0:02:05.880 an opportunity to to revisit that old decision. I suppose 0:02:05.920 --> 0:02:09.640 one one standard line about Chief Justice John Roberts and 0:02:09.760 --> 0:02:12.920 his court is that he often prefers to take the 0:02:13.080 --> 0:02:17.399 narrower approach to a question rather than the broad sweeping one. 0:02:17.520 --> 0:02:19.800 And if that's true here, then they might decide that 0:02:20.000 --> 0:02:23.560 it's enough for this case simply to resolve the disagreement, 0:02:23.560 --> 0:02:26.160 but among the lower courts, rather than you know, reopening 0:02:26.200 --> 0:02:28.720 this thirty year old case. But I imagine you'll see 0:02:28.720 --> 0:02:32.519 a whole lot of commentary and amicus briefs from religious 0:02:32.520 --> 0:02:36.160 liberty scholars talking about the possibility of of a substantial 0:02:36.240 --> 0:02:38.520 change in this area. Before we get into the weeds, 0:02:38.919 --> 0:02:41.000 tell us what the issue is in the case. The 0:02:41.040 --> 0:02:45.000 basic issue, well, the issue is whether a Catholic foster 0:02:45.080 --> 0:02:49.040 care agency, Catholic Social Services, may be excluded by the 0:02:49.080 --> 0:02:52.840 City of Philadelphia from certifying and placing kids in foster 0:02:52.919 --> 0:02:57.280 care because the Catholic Social Services has a policy of 0:02:57.520 --> 0:03:01.120 not referring for same sex couple and so the City 0:03:01.120 --> 0:03:04.560 of Philadelphia, when they learned that Catholic Social Services had 0:03:04.600 --> 0:03:07.880 this policy, they moved in various ways. And one of 0:03:07.919 --> 0:03:10.080 the disputes in this case is the various ways that 0:03:10.080 --> 0:03:12.600 Philadelphia did try to do this. But they moved to 0:03:12.680 --> 0:03:16.400 say that if Catholic Social Services had this policy, this 0:03:16.800 --> 0:03:20.840 religion based policy, that they could no longer be involved 0:03:20.880 --> 0:03:24.320 in foster care placements. And so there are some some 0:03:24.440 --> 0:03:27.360 foster parents who have worked with Catholic Social Services in 0:03:27.360 --> 0:03:30.880 the past, you know, longtime foster parents who are challenging 0:03:31.000 --> 0:03:33.480 Philadelphia's actions, and one of the things they're saying is 0:03:33.520 --> 0:03:38.400 that it's unconstitutional for Philadelphia to target Catholic Social Services 0:03:38.440 --> 0:03:43.080 for exclusion like this simply because they dislike or disagree 0:03:43.120 --> 0:03:46.760 with the religious position that Catholic Social Services has, which 0:03:46.800 --> 0:03:49.920 is that they want to place kids in opposite sex 0:03:50.160 --> 0:03:55.080 couple situations. But aren't there rules in Philadelphia rules against 0:03:55.240 --> 0:04:00.360 discrimination in Philadelphia, and the Catholic foster agency are not 0:04:00.920 --> 0:04:05.160 giving foster kids to gay couples. Is a violation of 0:04:05.240 --> 0:04:08.080 those rules. Yeah, so there's two layers here. The first 0:04:08.160 --> 0:04:12.160 layer is it's actually not clear that the relevant rules 0:04:12.160 --> 0:04:17.400 and regulations in Philadelphia actually did prohibit this kind of 0:04:17.560 --> 0:04:20.520 selectivity on the part of foster care agencies. That's kind 0:04:20.520 --> 0:04:22.400 of business in the weeds, and we probably don't want 0:04:22.400 --> 0:04:25.280 to go into it. But Philadelphia invoked sort of four 0:04:25.320 --> 0:04:29.600 different successive reasons why CSS Catholic Social Services needed to 0:04:29.640 --> 0:04:32.520 be excluded. There is a question really of whether Catholic 0:04:32.520 --> 0:04:35.279 Social Service was actually violating the rules in the first place. 0:04:35.320 --> 0:04:37.799 But if they were, or if they are in violation 0:04:38.080 --> 0:04:42.320 of a general rule against any kind of discrimination in 0:04:42.400 --> 0:04:45.760 terms of placement, then cathol Social Services is asking the 0:04:45.760 --> 0:04:49.320 court to say, well, that's fine, Philadelphia can have that rule, 0:04:49.480 --> 0:04:54.800 but if that rule imposes a substantial burden on religious exercise, 0:04:55.480 --> 0:04:58.360 then they're entitled to an exemption from that rule. Now 0:04:58.400 --> 0:05:00.200 to get to that point, you'd have to overrule the 0:05:00.200 --> 0:05:02.520 court's decision in Smith. The third point, I know, I 0:05:02.560 --> 0:05:04.040 said they were only two, but I like a lot 0:05:04.040 --> 0:05:09.280 of professis the third is that Catholic Social Services is 0:05:09.360 --> 0:05:15.799 arguing that Philadelphia doesn't really enforce this alleged rule against nondiscrimination, equally, 0:05:15.839 --> 0:05:19.719 that they do allow various foster care placement agencies to 0:05:20.000 --> 0:05:23.560 make exceptions to make referrals, because Catholic Social Services position 0:05:23.600 --> 0:05:26.080 is that they'll always refer people like the same sex 0:05:26.120 --> 0:05:27.839 couple who wanted to get involved in foster care, they 0:05:27.880 --> 0:05:30.120 always refer them to another agency, so there wouldn't be 0:05:30.120 --> 0:05:32.560 a question of preventing the same sex couples from being 0:05:32.560 --> 0:05:35.000 able to participate. And what CSS is saying is, you know, 0:05:35.000 --> 0:05:38.240 Philadelphia is not really enforcing this equally against all foster 0:05:38.279 --> 0:05:41.279 care agencies. They're singling us out, and therefore that violates 0:05:41.320 --> 0:05:44.120 the First Amendment. So that's the position. And as I 0:05:44.120 --> 0:05:46.200 said a second ago, the Court could kind of take 0:05:46.240 --> 0:05:49.440 a broad view and say, look, Philadelphia rules, if they 0:05:49.480 --> 0:05:52.720 burden religious exercise, they have to satisfy a very demanding 0:05:52.880 --> 0:05:55.080 standard we call strict scrutiny. Or they could take a 0:05:55.120 --> 0:05:58.479 more narrow approach and say, the First Amendment doesn't allow 0:05:58.560 --> 0:06:02.080 Philadelphia to kind of thing allowed Catholic Social Services for 0:06:02.120 --> 0:06:04.840 this kind of special exclusion just because they disapprove of 0:06:04.880 --> 0:06:07.880 their policy. I've been talking to Richard Garnett, a professor 0:06:07.920 --> 0:06:11.080 at Notre Dame Law School, about the Supreme Court accepting 0:06:11.120 --> 0:06:14.600 a major new religious rights case, agreeing to decide whether 0:06:14.680 --> 0:06:18.920 Catholic Social Services can be excluded from Philadelphia's foster care 0:06:19.000 --> 0:06:23.320 system because the group won't place children with same sex couples. Rick, 0:06:23.360 --> 0:06:25.120 I want to get back to the case of Employment 0:06:25.160 --> 0:06:29.960 Division versus Smith, decided by conservative Icon Justice and in 0:06:30.000 --> 0:06:36.240 Scalia last year. The courts foremost conservative members, Justices Clarence Thomas, 0:06:36.240 --> 0:06:41.120 Samuel Alito, Neil Gorsuch, and Brett Kavanaugh, signal they were 0:06:41.160 --> 0:06:44.640 open to reconsidering that decision. Yeah, this is an area 0:06:44.680 --> 0:06:47.760 where sometimes the kind of conservative and liberal labels that 0:06:47.800 --> 0:06:51.440 we use aren't particularly helpful. So in the Smith case, 0:06:51.760 --> 0:06:54.080 you're right, it was authored by Justice Scalia, and that 0:06:54.200 --> 0:06:57.160 was a decision that said, look, the government's allowed to 0:06:57.600 --> 0:07:02.200 apply neutral, generally applicable rules across the board as long 0:07:02.240 --> 0:07:04.719 as it's not discriminating against religion. You don't have a 0:07:04.720 --> 0:07:07.120 constitutional right to an exemption. But he was joined in 0:07:07.120 --> 0:07:10.560 that opinion by quote unquote liberal icon John Paul Stevens. 0:07:10.680 --> 0:07:12.800 And you know, on the other side, you had conservatives, 0:07:12.840 --> 0:07:15.640 say Sandra Day O'Connor, but you also had liberal justices, 0:07:15.680 --> 0:07:20.160 And there's been historically kind of agreement across ideological lines 0:07:20.280 --> 0:07:23.000 that in order to protect religious freedom, you do sometimes 0:07:23.120 --> 0:07:27.240 need to give religious believers exemptions from general laws, whether 0:07:27.280 --> 0:07:30.000 those laws or things like imagine a rule that requires 0:07:30.000 --> 0:07:33.560 you to have a bare head in your driver's license photo. Well, 0:07:33.600 --> 0:07:37.240 what if somebody has a religious obligation to cover his 0:07:37.360 --> 0:07:39.560 or her head. It makes sense most people think to 0:07:39.600 --> 0:07:41.480 provide an exemption in that case. But of course you 0:07:41.480 --> 0:07:44.360 can't give exemptions to everybody who wants them, because then, 0:07:44.440 --> 0:07:47.440 as Justice Lea said, you might well have chaos. It's 0:07:47.520 --> 0:07:50.280 very hard to administer the rule of law when everybody 0:07:50.320 --> 0:07:52.120 gets to decide whether or not they're going to follow it. 0:07:52.160 --> 0:07:54.480 But that's kind of a in a way, a straw man. 0:07:54.560 --> 0:07:58.080 I mean, the courts have for years now been working 0:07:58.080 --> 0:08:01.679 with statutes like the Religious Freedom Restoration Act. What laws 0:08:01.760 --> 0:08:04.400 like that do is they ask courts to basically balance 0:08:04.600 --> 0:08:07.040 the needs of the government on the one hand, against 0:08:07.080 --> 0:08:09.920 the needs of the religious dissenter on the other, and 0:08:10.000 --> 0:08:13.080 to try to find again a balance a way to 0:08:13.240 --> 0:08:16.960 advance both the government's important interests and to protect religious freedom. Now, 0:08:16.960 --> 0:08:19.520 it does appear, as you mentioned, that some of the 0:08:19.560 --> 0:08:23.640 current conservative justices have over the course of years, come 0:08:23.680 --> 0:08:25.920 to think that Justice lee As opinion and Smith was 0:08:25.960 --> 0:08:28.240 incorrect and could be interesting. If they've come to think that, 0:08:28.280 --> 0:08:30.160 you know, you might think, well, they'll they'll join the 0:08:30.200 --> 0:08:32.760 liberals and there'll be a decision overturning Smith that's like 0:08:32.960 --> 0:08:35.640 eight to one. But because there's been some evolution in 0:08:35.679 --> 0:08:38.640 the liberal justices thinking about religious freedom too, you might 0:08:38.720 --> 0:08:41.360 end up, perhaps ironically, with kind of a switch on 0:08:41.400 --> 0:08:44.720 this question. We will see. It seems as if the 0:08:44.880 --> 0:08:48.199 likelihood is either that the court is going to overrule 0:08:48.280 --> 0:08:52.760 Smith or rule in favor of the Catholic foster care agencies. 0:08:53.520 --> 0:08:57.320 Is there any possibility that the rule against the Catholic 0:08:57.400 --> 0:09:00.360 foster care agencies. Well, so, just to clare if I 0:09:00.360 --> 0:09:05.280 on uh, they could rule for the Catholic Social Services 0:09:05.840 --> 0:09:08.800 Agency on a number of different grounds, and some would 0:09:08.800 --> 0:09:11.280 be more narrow than the others. If if they overruled Smith, 0:09:12.320 --> 0:09:14.960 I think that would mean they probably would say that 0:09:15.000 --> 0:09:18.000 the Catholic foster Care Agency has a right to an exemption. 0:09:18.480 --> 0:09:22.120 But certainly they could decide, look, Smith has been the 0:09:22.160 --> 0:09:25.480 law for thirty years, and under Smith, the Catholic Social 0:09:25.480 --> 0:09:30.680 Services foster care program loses. They could say Philadelphia does 0:09:30.760 --> 0:09:35.960 have a general rule. That rule does apply to this context, 0:09:36.000 --> 0:09:38.440 the foster care context. They could say there hasn't been 0:09:38.480 --> 0:09:42.600 any kind of targeting or discrimination against Catholic Social Services 0:09:42.600 --> 0:09:45.240 because of their religious views and because of the government's 0:09:45.280 --> 0:09:47.640 disagreement with those views, and therefore they lose. But I 0:09:47.679 --> 0:09:51.080 think most court watchers expect that. You know, again, they 0:09:51.080 --> 0:09:54.720 wouldn't have taken the case if they had that view, because, 0:09:55.000 --> 0:09:58.120 after all, the Catholic Social Services had already lost below, 0:09:58.160 --> 0:10:00.200 there really wouldn't be any need to take the ace 0:10:00.280 --> 0:10:02.440 if they were just going to agree that they should lose. 0:10:02.600 --> 0:10:04.719 So that's why I think there's going to be a 0:10:04.720 --> 0:10:08.040 whole lot of interest in this case across the political spectrum, 0:10:08.080 --> 0:10:11.920 because there are academics who believe that Smith was wrongly 0:10:11.960 --> 0:10:18.160 decided and who think anti discrimination law should apply forcefully 0:10:18.240 --> 0:10:21.520 in contexts like this. Um, so there'll be there'll be 0:10:21.559 --> 0:10:24.199 a lot of interest. This seems to be another case 0:10:24.360 --> 0:10:28.640 of religion versus gay rights, and I suspect that many 0:10:28.720 --> 0:10:34.880 in the LGBTQ community see it as religion discriminating against them. Yeah. Well, 0:10:35.040 --> 0:10:37.959 it's certainly true that these days a number of our 0:10:38.240 --> 0:10:42.199 religious freedom conflicts do involve at tension between the kind 0:10:42.240 --> 0:10:46.320 of religious commitments of some more traditional groups and believers 0:10:46.360 --> 0:10:49.559 on the one hand, and non discrimination law that applies 0:10:49.960 --> 0:10:52.040 on the basis of sexual orientation on the other. So 0:10:52.080 --> 0:10:54.240 that's the fact we saw that Masterpiece cake shop, We've 0:10:54.240 --> 0:10:56.080 seen it in a lot of other cases around the country. 0:10:56.280 --> 0:10:59.280 Doesn't appear that that conflict is gonna go away anytime soon. 0:10:59.559 --> 0:11:01.199 At the same time, this issue is a lot bigger 0:11:01.200 --> 0:11:03.760 than that tension, and I think it's really important to 0:11:03.800 --> 0:11:07.040 underscore that there's a tendency in some newspaper coverage to 0:11:07.080 --> 0:11:10.000 act as though the only religious exemptions cases that are 0:11:10.000 --> 0:11:13.040 out there are cases involving gay rights and same sex 0:11:13.080 --> 0:11:15.320 marriage and so on, and in fact, such cases are 0:11:15.520 --> 0:11:18.360 a very small percentage of the number of exemption cases 0:11:18.360 --> 0:11:20.480 that actually come up. It's much more common to have 0:11:20.640 --> 0:11:24.079 exemptions cases involving someone who needs to wear religious headcovering, 0:11:24.160 --> 0:11:26.480 or perhaps need to have a special accommodation to be 0:11:26.520 --> 0:11:30.319 able to comply with a religious dietary obligation, or needs 0:11:30.320 --> 0:11:33.079 to have a foot washing station in a public university 0:11:33.080 --> 0:11:35.320 because of a religious need. Again, it's it's a really 0:11:35.360 --> 0:11:38.960 small subset of religious exemptions cases that involve gay rights, 0:11:38.960 --> 0:11:42.079 and I worry that the focus on these cases can 0:11:42.120 --> 0:11:44.640 cause some people to miss the underlying issue, which I 0:11:44.640 --> 0:11:47.440 think is important and which matters again the people across 0:11:47.480 --> 0:11:50.920 the political spectrum, and that is, in a complicated regulatory 0:11:51.040 --> 0:11:54.719 society like the one we have that also has religious pluralism, 0:11:54.880 --> 0:11:59.480 has religious disagreement, that has religious minorities, the only way 0:11:59.640 --> 0:12:02.640 that we can be sure that the majority doesn't just 0:12:02.800 --> 0:12:06.040 disregard the religious needs and the religious freedom of the 0:12:06.080 --> 0:12:10.760 minority is to sometimes allow exemptions and accommodations. You know, 0:12:10.800 --> 0:12:14.000 religious freedom doesn't only belong to people with whom we agree. 0:12:14.040 --> 0:12:16.840 Religious freedom belongs to people whom we disagree. If we 0:12:16.880 --> 0:12:19.880 agreed with them, these issues wouldn't come up. And so 0:12:20.240 --> 0:12:22.600 I think it's important to kind of step back and 0:12:23.280 --> 0:12:25.840 be sure we keep in view the broader question of 0:12:26.160 --> 0:12:29.520 a diverse society. How do you provide adequate protection to 0:12:29.600 --> 0:12:33.679 people whose religious beliefs might strike us as strange or 0:12:33.720 --> 0:12:37.040 outdated or what have you. You mentioned Masterpiece cake Shop. 0:12:37.800 --> 0:12:42.679 If the Supreme Court hadn't sort of decided not to 0:12:43.320 --> 0:12:47.880 decide the major issue there, the real issue there, would 0:12:47.880 --> 0:12:50.520 we still be having all these cases? I mean, could 0:12:50.600 --> 0:12:54.680 the Court have set forth a definitive standard there? Well, 0:12:55.360 --> 0:13:00.040 so yes, they probably could have. And um, you know, 0:13:00.120 --> 0:13:03.560 the composition of the court has changed a bit since then, 0:13:04.320 --> 0:13:09.000 but Matterpiece had some dimensions that are we're kind of 0:13:09.040 --> 0:13:11.320 particular to it. If you if you remember in the 0:13:11.360 --> 0:13:14.959 cake Shop case, um, the cake artist was not only 0:13:15.000 --> 0:13:19.360 making a freedom of religion claim, he was also making 0:13:19.360 --> 0:13:24.520 a free speech claim, arguing that, you know, to require 0:13:24.679 --> 0:13:31.640 somebody to use their creative skills to endorse a message 0:13:31.640 --> 0:13:35.160 with which they disagree that that violates the freedom of speech. 0:13:36.080 --> 0:13:38.840 And you know, again, not all of these religious exemptions 0:13:38.880 --> 0:13:43.520 cases have that that speech dimensions. So in a sense, 0:13:44.480 --> 0:13:48.480 the new case from Philadelphia has the potential, I think too, 0:13:49.080 --> 0:13:51.160 to sweep a little more broadly and to deal with 0:13:51.679 --> 0:13:56.240 a wider range of distinctly religious claims than perhaps Cake 0:13:56.280 --> 0:14:00.760 Shop did. And finally, could this case East lead to 0:14:00.960 --> 0:14:05.640 a major shift, a major change in church state laws. Well, 0:14:05.640 --> 0:14:07.559 it certainly could. I mean, if the court were to 0:14:07.720 --> 0:14:10.560 reverse employment Division versus Smith. You know, that's putting aside 0:14:10.600 --> 0:14:13.040 what's been the law for for thirty years. And now 0:14:13.200 --> 0:14:15.880 it could be that that change would be relatively minor 0:14:15.920 --> 0:14:17.920 in the sense that they would tweak Smith, but not 0:14:17.960 --> 0:14:20.080 completely abandon it. But then there's also the potential that 0:14:20.080 --> 0:14:23.400 they would, just as I said, clarify this disagreement between 0:14:23.400 --> 0:14:26.080 the lower courts, and then the impact of the ruling 0:14:26.080 --> 0:14:28.960 would be less sweeping. Although you know, from a lawyer's perspective, 0:14:29.000 --> 0:14:31.920 it's it's always nice when you have clarity rather than uncertainty. 0:14:31.960 --> 0:14:34.320 So I'm sure that lawyers would welcome that too. Thanks 0:14:34.360 --> 0:14:37.360 so much for being on Bloomberg Law. Rick. That's Richard Garnett, 0:14:37.440 --> 0:14:40.560 professor at Notre Dame Law School. I'm June Wilso, and 0:14:40.680 --> 0:14:41.600 this is Bloomberg.