Everyone’s Bastard? From Natural Rights to Nature’s Child in Fulton

While not a defeat for religious liberty, the long-awaited Fulton v. City of Philadelphia case supported the rights of a religious social services agency to decline, for the moment, the assigning of foster children to same-sex couples. It turns out that the 9-0 “win” for religious adoption agencies was everyone’s bastard, but no one’s child. 

This was no advance. Ask Masterpiece Cakeshop master baker Jack Phillips if he still feels victorious following the Supreme Court’s agreeing with him in Masterpiece Cakeshop v. Colorado Civil Rights Commission (2018). Phillips continues to be harassed by activists demanding he make cakes expressing anti-religious and same-sex marriage sentiments, which his tormentors insist are their legal rights to enjoy on demand, as with the transgender celebration cake he recently refused to make. There’s something unAmerican going on here, and the court once again doesn’t seem to get it.

The court’s unanimous opinion  found that Philadelphia’s inept officials had practiced religious discrimination against Catholic Social Services (CSS) in questioning its foster care recommendations. CSS and other foster care and adoption agencies had, for over two centuries, performed nobly in their religious missions to match orphans with parents. But in its 15-page opinion, including a summary of the facts, the unanimous court found that the city’s “contractual non-discrimination requirement imposes a burden on CSS’s free religious exercise and does not qualify as generally applicable.” Therefore, the Court concluded, Philadelphia’s demand that CSS certify same-sex couples as foster parents cannot meet the “strict scrutiny” requirements of the religious free exercise clause of the First Amendment. 

By contrast, in his 77-page concurring opinion, Justice Samuel Alito (joined by Justices Clarence Thomas and Neil Gorsuch) insisted, “This decision might as well be written on the dissolving paper sold in magic shops.” 

What the Roberts opinion failed to offer, Alito provides in abundance: a competent summary of the major religious free exercise cases of the 20th century to the present, including the COVID cases of the past several months. If Roberts had bothered with that, he would have concluded that a major precedent, Oregon v. Smith (1990), had been so worn away and battered that it should now be overturned. In that controversial opinion, partly modified by Congress, Justice Antonin Scalia attempted to draw a bright line that would bring order to the confusion of religious liberty precedents. 

An otherwise reasonable law, Scalia argued, could not violate First Amendment free religious exercise—in this case, a state law banning certain drugs, one of which, peyote, was used by Smith in Native American religious ceremonies. The law would need to have anti-religious intent or inflict an impermissible burden on religious exercise to be considered unconstitutional.

Applying this precedent, Philadelphia insisted that its civil rights laws recognizing gay marriage require that CSS include same-sex couples in its foster care parenting referrals. This violates Catholic doctrine (not to mention natural law), which does not recognize such relationships as marriages and so holds them inappropriate for parenting. Following its judicial setback, Philadelphia will simply modify its contracts with CSS and other agencies to reiterate its earlier demands of not excluding same-sex couples, while training its bureaucrats to avoid giving religious offense.

The great absurdity is that all this theater will take place in order to prevent discrimination which would not occur if all parties were permitted to act in their rational self-interest: A same-sex couple would not go to CSS in hopes of finding a foster child, and CSS would never expect a same-sex couple to request its services. And, in fact, there never was a complaint against CSS from a same-sex couple. As in other cases involving “gay rights,” there is not a real case here; these “show cases” are being brought by activists (or, here, bureaucrats) looking for an excuse to make trouble.

One is tempted to just agree with the always sensible Alito and conclude that a politically sensitive Roberts dodged a principled position. Or that the disappointing Justice Amy Coney Barrett seemed not to know whether overturning Smith would leave religious liberty better protected. But I am not persuaded: for religious liberty cases are now so badly decided in general that it seems virtually any attempt to rescue them will go awry and distort constitutional principles more than strengthen them. Yet unless we make the effort, our most fundamental liberties, not just religious ones, are lost.

To support my condemnation of the court’s reasoning in these cases, I turn to the clearest statement of religious freedom—and its political context, George Washington’s letter to the Touro synagogue. 

The citizens of the United States of America have a right to applaud themselves for having given to mankind examples of an enlarged and liberal policy—a policy worthy of imitation. All possess alike liberty of conscience and immunities of citizenship.

It is now no more that toleration is spoken of as if it were the indulgence of one class of people that another enjoyed the exercise of their inherent natural rights, for, happily, the Government of the United States, which gives to bigotry no sanction, to persecution no assistance, requires only that they who live under its protection should demean themselves as good citizens in giving it on all occasions their effectual support. (Emphasis added.)

Americans agree that all should first enjoy “the exercise of their inherent natural rights” and therefore enjoy religious liberty. This is more than mere toleration. The assertion of natural rights here means the Lockean teaching that each American owns himself. The Declaration looks at freedoms in an American way, not in English common law terms.

Of course,  adherents of the biblical religions would add that every human being is a child of God. That does not contradict the self-ownership of Americans but rather enhances or perfects that self-interest, to produce limited government along with unlimited love of God the father. For a Christian this is the meaning of the Our Father prayer, “thy will be done on earth, as it is in heaven.”

Moreover, religious liberty is part of a complex explanation of who the American is. The Declaration of Independence describes generally and the First Amendment more particularly elements of the American soul:

Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof; or abridging the freedom of speech, or of the press; or the right of the people peaceably to assemble, and to petition the Government for a redress of grievances.

Exercising religion as well as public speaking, writing, and acting politically develop the republican unity of deliberating citizens. The realm of conscience, thought, and deliberated-upon action demands protection from arbitrary government action. The transcendence of earthly matters as the aim of human life informs the soul of American political life. 

This background may explain why defenders of the Smith precedent are quick to point out the problem of having religious exemptions in our laws. Philip Hamburger, author of the leading book on religious liberty, Separation of Church and State, argues that blanket exemptions are not to be seen in the founding era documents. For example, Delaware’s constitution, to choose one example among many, provided that Christians “ought . . . to enjoy equal Rights and Privileges in this State, unless, under Colour of Religion, any Man disturb the Peace, Happiness or Safety of Society.” In fact, state references to free exercise of religion are inevitably accompanied by caveats concerning public peace.  

The prime example of such a caveat is Article I of the Northwest Ordinance, passed on July 13, 1787, one of the four organic laws of the United States: “No person, demeaning himself in a peaceable and orderly manner, shall ever be molested on account of his mode of worship or religious sentiments, in the said territory.” How much more, if anything more, was Scalia demanding in Smith?

Critics of Scalia—odd to find conservatives lined up against him—may smell French laïcité or secularism. But, in truth, the enemies of America can put on religious garments as well as secular suits.In our zeal to overturn dubious precedents let us go to a far more culpable one—the opinion that created a constitutionally protected superior class, in violation of the principle of equality, “the discrete and insular minority.” No, we are not talking about an old Japanese man.  

What has happened is that strange new gods we face had been welcomed in long before Employment Division of Oregon v. Smith (1990) Before Smith we saw religious free-exercise claims prevailing over bans on door-to-door sales, flag salutes, the draft, taxation, and school attendance. And for a while, old practices such as bans on polygamy and Sunday closing laws were sustained. After Smith, animal sacrifices were protected as free religious exercise, and after months of litigation and finally following the addition of Barrett to the court some discriminatory COVID restrictions against churches fell. 

But in fact, the new gods had entered under the aegis of the notorious “footnote four” of U.S. v. Carolene Products (1938), which elevated “discrete and insular minorities” to a privileged status for constitutional protection. Allegedly denied legal protection by putatively hostile majorities, footnote four would grant such minorities (religious, ethnic, or racial) enhanced protection by the non-democratic judiciary. Would they ever lose their privileged status? Tasting success, might their demands for rights increase? Would plurality or majority viewpoints experience discrimination? Citizens must raise these questions.  

The non-democratic branch of government—why not the bureaucracy as much as the judiciary, or the staff of Congress or the White House?—would have the duty to use its power against presumably unjust majorities. Hamburger points out the major aggressions against religious free exercise have come from bureaucracies and not the law. 

The exclusion [from political life] is two-fold. First, the exclusion arises from the growth of federal administrative power, which leaves Americans, including religious Americans, no opportunity to vote for or against their administrative lawmakers. Second, the exclusion comes from § 501(c) (3) of the Internal Revenue Code [what President Trump called the Johnson amendment]. . . . As a result of this section, even when law is made in Congress, religious organizations are restricted in their petitioning and campaigning for or against lawmakers.

The Fulton flare-up is part of a larger war. The result of First Amendment law, Hamburger observes,   

is a constitutional magic trick. You can enjoy all three First Amendment rights—those of speech, petitioning, and religion. But if you mix these rights together in a church . . . drum roll . . . Voila! . . . All three constitutional rights disappear!

It is not accidental that what is left of orthodox religion has taken the brunt of the incoming fire. Smith is but one battle in the triumphal march of the new gods, Fulton a mere skirmish, albeit one that bodes well for the future.  

Added to these was the egregious Bostock gender-reveal opinion, authored by none other than Neil Gorsuch, as full-throated a repudiation of natural right as can be. By replacing and identifying sex with gender, Gorsuch sanctified the same-sex marriage opinion of Obergefell. Gay rights has become officially part of civil rights.

As things stand though, it would appear the new First Amendment commands the administrative state that gives us a theology, reason, and politics radiating from the new gods that have entered public life in the past century. Democrats control the elected branches, and even when Republicans do, they seem content to allow the courts to do their work for them. The Fulton flop indicates what happens as a result. Chasing the new gods out of the temple cannot fall on the Supreme Court alone.

About Ken Masugi

Ken Masugi, Ph.D., is a distinguished fellow of the Center for American Greatness and a senior fellow of the Claremont Institute. He has been a speechwriter for two cabinet members, and a special assistant for Clarence Thomas when he was chairman of the Equal Employment Opportunity Commission. Masugi is co-author, editor, or co-editor of 10 books on American politics. He has taught at the U.S. Air Force Academy, where he was Olin Distinguished Visiting Professor; James Madison College of Michigan State University; the Ashbrook Center of Ashland University; and Princeton University.

Photo: Photo by Chip Somodevilla/Getty Images

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