Speaker 1: This is Bloomberg Law with June Grasso from Bloomberg Radio.
Speaker 1: The Supreme Court has accepted a case that could change
Speaker 1: the landscape for religious rights and strength and First Amendment protections.
Speaker 1: The Court is being asked to overturn boundaries established thirty
Speaker 1: years ago. In a landmark decision, the justices will disside
Speaker 1: whether Catholic Social Services can be excluded from Philadelphia's foster
Speaker 1: care system because the group won't place children with same
Speaker 1: sex couples. My guest is Richard Garnett, a professor at
Speaker 1: Notre Dame Law School. Why is this case important enough
Speaker 1: for the Supreme Court to have taken it? Yeah, well,
Speaker 1: that's that's always the big question in these issues. You know,
Speaker 1: the standard line is that they don't take cases just
Speaker 1: to pat the lower courts on the heads. Often it
Speaker 1: means to something about the decision that's caught their attention.
Speaker 1: I think the most straight forward answer is that there's
Speaker 1: a disagreement among the federal courts of appeals regarding a
Speaker 1: fairly technical question of First him in doctrine. You have
Speaker 1: the lower court in this case agreeing with the Ninth
Speaker 1: Circuit out West on one way to interpret some of
Speaker 1: the Supreme courts precedents, and then you have several other
Speaker 1: courts of appeals that have lined up on the other side.
Speaker 1: And that's one of the sort of standard situations when
Speaker 1: the Justices will weigh in when they need to clear
Speaker 1: up a disagreement among the lower courts. So I think
Speaker 1: that's the most straightforward possibility. A second possibility is intriguingly
Speaker 1: presented by another one of the questions presented in the briefs,
Speaker 1: and that is whether the Supreme Court should take another
Speaker 1: look at this thirty year old decision called Employment Division
Speaker 1: versus Smith, which is kind of the basic foundational Supreme
Speaker 1: Court precedent when it comes to exemptions for religious exercise.
Speaker 1: And you know, scholars have been criticizing the Smith decision
Speaker 1: ever since the day it was announced, and at least
Speaker 1: thirty years ago, there was agreement among many scholars on
Speaker 1: the political right and the political left, although some of
Speaker 1: those views have kind of migrated over time. But if
Speaker 1: they want to, the Justices could use this case as
Speaker 1: an opportunity to to revisit that old decision. I suppose
Speaker 1: one one standard line about Chief Justice John Roberts and
Speaker 1: his court is that he often prefers to take the
Speaker 1: narrower approach to a question rather than the broad sweeping one.
Speaker 1: And if that's true here, then they might decide that
Speaker 1: it's enough for this case simply to resolve the disagreement,
Speaker 1: but among the lower courts, rather than you know, reopening
Speaker 1: this thirty year old case. But I imagine you'll see
Speaker 1: a whole lot of commentary and amicus briefs from religious
Speaker 1: liberty scholars talking about the possibility of of a substantial
Speaker 1: change in this area. Before we get into the weeds,
Speaker 1: tell us what the issue is in the case. The
Speaker 1: basic issue, well, the issue is whether a Catholic foster
Speaker 1: care agency, Catholic Social Services, may be excluded by the
Speaker 1: City of Philadelphia from certifying and placing kids in foster
Speaker 1: care because the Catholic Social Services has a policy of
Speaker 1: not referring for same sex couple and so the City
Speaker 1: of Philadelphia, when they learned that Catholic Social Services had
Speaker 1: this policy, they moved in various ways. And one of
Speaker 1: the disputes in this case is the various ways that
Speaker 1: Philadelphia did try to do this. But they moved to
Speaker 1: say that if Catholic Social Services had this policy, this
Speaker 1: religion based policy, that they could no longer be involved
Speaker 1: in foster care placements. And so there are some some
Speaker 1: foster parents who have worked with Catholic Social Services in
Speaker 1: the past, you know, longtime foster parents who are challenging
Speaker 1: Philadelphia's actions, and one of the things they're saying is
Speaker 1: that it's unconstitutional for Philadelphia to target Catholic Social Services
Speaker 1: for exclusion like this simply because they dislike or disagree
Speaker 1: with the religious position that Catholic Social Services has, which
Speaker 1: is that they want to place kids in opposite sex
Speaker 1: couple situations. But aren't there rules in Philadelphia rules against
Speaker 1: discrimination in Philadelphia, and the Catholic foster agency are not
Speaker 1: giving foster kids to gay couples. Is a violation of
Speaker 1: those rules. Yeah, so there's two layers here. The first
Speaker 1: layer is it's actually not clear that the relevant rules
Speaker 1: and regulations in Philadelphia actually did prohibit this kind of
Speaker 1: selectivity on the part of foster care agencies. That's kind
Speaker 1: of business in the weeds, and we probably don't want
Speaker 1: to go into it. But Philadelphia invoked sort of four
Speaker 1: different successive reasons why CSS Catholic Social Services needed to
Speaker 1: be excluded. There is a question really of whether Catholic
Speaker 1: Social Service was actually violating the rules in the first place.
Speaker 1: But if they were, or if they are in violation
Speaker 1: of a general rule against any kind of discrimination in
Speaker 1: terms of placement, then cathol Social Services is asking the
Speaker 1: court to say, well, that's fine, Philadelphia can have that rule,
Speaker 1: but if that rule imposes a substantial burden on religious exercise,
Speaker 1: then they're entitled to an exemption from that rule. Now
Speaker 1: to get to that point, you'd have to overrule the
Speaker 1: court's decision in Smith. The third point, I know, I
Speaker 1: said they were only two, but I like a lot
Speaker 1: of professis the third is that Catholic Social Services is
Speaker 1: arguing that Philadelphia doesn't really enforce this alleged rule against nondiscrimination, equally,
Speaker 1: that they do allow various foster care placement agencies to
Speaker 1: make exceptions to make referrals, because Catholic Social Services position
Speaker 1: is that they'll always refer people like the same sex
Speaker 1: couple who wanted to get involved in foster care, they
Speaker 1: always refer them to another agency, so there wouldn't be
Speaker 1: a question of preventing the same sex couples from being
Speaker 1: able to participate. And what CSS is saying is, you know,
Speaker 1: Philadelphia is not really enforcing this equally against all foster
Speaker 1: care agencies. They're singling us out, and therefore that violates
Speaker 1: the First Amendment. So that's the position. And as I
Speaker 1: said a second ago, the Court could kind of take
Speaker 1: a broad view and say, look, Philadelphia rules, if they
Speaker 1: burden religious exercise, they have to satisfy a very demanding
Speaker 1: standard we call strict scrutiny. Or they could take a
Speaker 1: more narrow approach and say, the First Amendment doesn't allow
Speaker 1: Philadelphia to kind of thing allowed Catholic Social Services for
Speaker 1: this kind of special exclusion just because they disapprove of
Speaker 1: their policy. I've been talking to Richard Garnett, a professor
Speaker 1: at Notre Dame Law School, about the Supreme Court accepting
Speaker 1: a major new religious rights case, agreeing to decide whether
Speaker 1: Catholic Social Services can be excluded from Philadelphia's foster care
Speaker 1: system because the group won't place children with same sex couples. Rick,
Speaker 1: I want to get back to the case of Employment
Speaker 1: Division versus Smith, decided by conservative Icon Justice and in
Speaker 1: Scalia last year. The courts foremost conservative members, Justices Clarence Thomas,
Speaker 1: Samuel Alito, Neil Gorsuch, and Brett Kavanaugh, signal they were
Speaker 1: open to reconsidering that decision. Yeah, this is an area
Speaker 1: where sometimes the kind of conservative and liberal labels that
Speaker 1: we use aren't particularly helpful. So in the Smith case,
Speaker 1: you're right, it was authored by Justice Scalia, and that
Speaker 1: was a decision that said, look, the government's allowed to
Speaker 1: apply neutral, generally applicable rules across the board as long
Speaker 1: as it's not discriminating against religion. You don't have a
Speaker 1: constitutional right to an exemption. But he was joined in
Speaker 1: that opinion by quote unquote liberal icon John Paul Stevens.
Speaker 1: And you know, on the other side, you had conservatives,
Speaker 1: say Sandra Day O'Connor, but you also had liberal justices,
Speaker 1: And there's been historically kind of agreement across ideological lines
Speaker 1: that in order to protect religious freedom, you do sometimes
Speaker 1: need to give religious believers exemptions from general laws, whether
Speaker 1: those laws or things like imagine a rule that requires
Speaker 1: you to have a bare head in your driver's license photo. Well,
Speaker 1: what if somebody has a religious obligation to cover his
Speaker 1: or her head. It makes sense most people think to
Speaker 1: provide an exemption in that case. But of course you
Speaker 1: can't give exemptions to everybody who wants them, because then,
Speaker 1: as Justice Lea said, you might well have chaos. It's
Speaker 1: very hard to administer the rule of law when everybody
Speaker 1: gets to decide whether or not they're going to follow it.
Speaker 1: But that's kind of a in a way, a straw man.
Speaker 1: I mean, the courts have for years now been working
Speaker 1: with statutes like the Religious Freedom Restoration Act. What laws
Speaker 1: like that do is they ask courts to basically balance
Speaker 1: the needs of the government on the one hand, against
Speaker 1: the needs of the religious dissenter on the other, and
Speaker 1: to try to find again a balance a way to
Speaker 1: advance both the government's important interests and to protect religious freedom. Now,
Speaker 1: it does appear, as you mentioned, that some of the
Speaker 1: current conservative justices have over the course of years, come
Speaker 1: to think that Justice lee As opinion and Smith was
Speaker 1: incorrect and could be interesting. If they've come to think that,
Speaker 1: you know, you might think, well, they'll they'll join the
Speaker 1: liberals and there'll be a decision overturning Smith that's like
Speaker 1: eight to one. But because there's been some evolution in
Speaker 1: the liberal justices thinking about religious freedom too, you might
Speaker 1: end up, perhaps ironically, with kind of a switch on
Speaker 1: this question. We will see. It seems as if the
Speaker 1: likelihood is either that the court is going to overrule
Speaker 1: Smith or rule in favor of the Catholic foster care agencies.
Speaker 1: Is there any possibility that the rule against the Catholic
Speaker 1: foster care agencies. Well, so, just to clare if I
Speaker 1: on uh, they could rule for the Catholic Social Services
Speaker 1: Agency on a number of different grounds, and some would
Speaker 1: be more narrow than the others. If if they overruled Smith,
Speaker 1: I think that would mean they probably would say that
Speaker 1: the Catholic foster Care Agency has a right to an exemption.
Speaker 1: But certainly they could decide, look, Smith has been the
Speaker 1: law for thirty years, and under Smith, the Catholic Social
Speaker 1: Services foster care program loses. They could say Philadelphia does
Speaker 1: have a general rule. That rule does apply to this context,
Speaker 1: the foster care context. They could say there hasn't been
Speaker 1: any kind of targeting or discrimination against Catholic Social Services
Speaker 1: because of their religious views and because of the government's
Speaker 1: disagreement with those views, and therefore they lose. But I
Speaker 1: think most court watchers expect that. You know, again, they
Speaker 1: wouldn't have taken the case if they had that view, because,
Speaker 1: after all, the Catholic Social Services had already lost below,
Speaker 1: there really wouldn't be any need to take the ace
Speaker 1: if they were just going to agree that they should lose.
Speaker 1: So that's why I think there's going to be a
Speaker 1: whole lot of interest in this case across the political spectrum,
Speaker 1: because there are academics who believe that Smith was wrongly
Speaker 1: decided and who think anti discrimination law should apply forcefully
Speaker 1: in contexts like this. Um, so there'll be there'll be
Speaker 1: a lot of interest. This seems to be another case
Speaker 1: of religion versus gay rights, and I suspect that many
Speaker 1: in the LGBTQ community see it as religion discriminating against them. Yeah. Well,
Speaker 1: it's certainly true that these days a number of our
Speaker 1: religious freedom conflicts do involve at tension between the kind
Speaker 1: of religious commitments of some more traditional groups and believers
Speaker 1: on the one hand, and non discrimination law that applies
Speaker 1: on the basis of sexual orientation on the other. So
Speaker 1: that's the fact we saw that Masterpiece cake shop, We've
Speaker 1: seen it in a lot of other cases around the country.
Speaker 1: Doesn't appear that that conflict is gonna go away anytime soon.
Speaker 1: At the same time, this issue is a lot bigger
Speaker 1: than that tension, and I think it's really important to
Speaker 1: underscore that there's a tendency in some newspaper coverage to
Speaker 1: act as though the only religious exemptions cases that are
Speaker 1: out there are cases involving gay rights and same sex
Speaker 1: marriage and so on, and in fact, such cases are
Speaker 1: a very small percentage of the number of exemption cases
Speaker 1: that actually come up. It's much more common to have
Speaker 1: exemptions cases involving someone who needs to wear religious headcovering,
Speaker 1: or perhaps need to have a special accommodation to be
Speaker 1: able to comply with a religious dietary obligation, or needs
Speaker 1: to have a foot washing station in a public university
Speaker 1: because of a religious need. Again, it's it's a really
Speaker 1: small subset of religious exemptions cases that involve gay rights,
Speaker 1: and I worry that the focus on these cases can
Speaker 1: cause some people to miss the underlying issue, which I
Speaker 1: think is important and which matters again the people across
Speaker 1: the political spectrum, and that is, in a complicated regulatory
Speaker 1: society like the one we have that also has religious pluralism,
Speaker 1: has religious disagreement, that has religious minorities, the only way
Speaker 1: that we can be sure that the majority doesn't just
Speaker 1: disregard the religious needs and the religious freedom of the
Speaker 1: minority is to sometimes allow exemptions and accommodations. You know,
Speaker 1: religious freedom doesn't only belong to people with whom we agree.
Speaker 1: Religious freedom belongs to people whom we disagree. If we
Speaker 1: agreed with them, these issues wouldn't come up. And so
Speaker 1: I think it's important to kind of step back and
Speaker 1: be sure we keep in view the broader question of
Speaker 1: a diverse society. How do you provide adequate protection to
Speaker 1: people whose religious beliefs might strike us as strange or
Speaker 1: outdated or what have you. You mentioned Masterpiece cake Shop.
Speaker 1: If the Supreme Court hadn't sort of decided not to
Speaker 1: decide the major issue there, the real issue there, would
Speaker 1: we still be having all these cases? I mean, could
Speaker 1: the Court have set forth a definitive standard there? Well,
Speaker 1: so yes, they probably could have. And um, you know,
Speaker 1: the composition of the court has changed a bit since then,
Speaker 1: but Matterpiece had some dimensions that are we're kind of
Speaker 1: particular to it. If you if you remember in the
Speaker 1: cake Shop case, um, the cake artist was not only
Speaker 1: making a freedom of religion claim, he was also making
Speaker 1: a free speech claim, arguing that, you know, to require
Speaker 1: somebody to use their creative skills to endorse a message
Speaker 1: with which they disagree that that violates the freedom of speech.
Speaker 1: And you know, again, not all of these religious exemptions
Speaker 1: cases have that that speech dimensions. So in a sense,
Speaker 1: the new case from Philadelphia has the potential, I think too,
Speaker 1: to sweep a little more broadly and to deal with
Speaker 1: a wider range of distinctly religious claims than perhaps Cake
Speaker 1: Shop did. And finally, could this case East lead to
Speaker 1: a major shift, a major change in church state laws. Well,
Speaker 1: it certainly could. I mean, if the court were to
Speaker 1: reverse employment Division versus Smith. You know, that's putting aside
Speaker 1: what's been the law for for thirty years. And now
Speaker 1: it could be that that change would be relatively minor
Speaker 1: in the sense that they would tweak Smith, but not
Speaker 1: completely abandon it. But then there's also the potential that
Speaker 1: they would, just as I said, clarify this disagreement between
Speaker 1: the lower courts, and then the impact of the ruling
Speaker 1: would be less sweeping. Although you know, from a lawyer's perspective,
Speaker 1: it's it's always nice when you have clarity rather than uncertainty.
Speaker 1: So I'm sure that lawyers would welcome that too. Thanks
Speaker 1: so much for being on Bloomberg Law. Rick. That's Richard Garnett,
Speaker 1: professor at Notre Dame Law School. I'm June Wilso, and
Speaker 1: this is Bloomberg.