After losing at the appellate level, state officials turned to the U.S. Supreme Court. They asked the justices to consider the dismissals and determine whether they amounted to religious discrimination.

On Tuesday, the Supreme Court declined to get involved, but Justice Samuel Alito published a statement emphasizing the importance of the issues involved.

Whether jurors can be dismissed based on their religious beliefs about sexuality is a “very serious and important question,” he wrote, one that he anticipated when the Supreme Court legalized same-sex marriage.

“In this case, the court below reasoned that a person who still holds traditional religious views on questions of sexual morality is presumptively unfit to serve on a jury in a case involving a party who is a lesbian. That holding exemplifies the danger that I anticipated in Obergefell v. Hodges, namely, that Americans who do not hide their adherence to traditional religious beliefs about homosexual conduct will be ‘labeled as bigots and treated as such’ by the government,” Alito said.

Read it all.

The Supreme Court won’t yet consider whether potential jurors can be dismissed based on their religious beliefs. | By @kelsey_dallas https://t.co/8yVvoH8BE8

— Deseret News (@Deseret) February 28, 2024

‘The following story is told of Judge [Horace] Gray, now in the US Supreme Court: “A man was brought before him who was justly charged with being an offender of the meanest sort. Through some technicality the Judge was obliged to discharge him, but as he did so he chose the time to say what he though of the matter. I believe you guilty, he said, and would wish to condemn you severely, but through a petty technicality I am obliged to discharge you. I know you are guilty, and so do you, and I wish you to remember that one day you will stand before a better and perhaps wiser Judge, when you will be dealt with according to justice and not according to law.”’

–Chicago Tribune, Friday March 7, 1884, page 4

“The bonds of citizenship derive from people’s place of birth not from their blood.”

– Justice Horace Gray

[United States Vs. Wong Kim Ark (1898)]#14thAmendment pic.twitter.com/5Ah02bs1b8

— Shamel (@ShamelLakin) August 13, 2020

The court’s initial step on ethics, in the spring, did not mollify critics. Roberts declined an invitation from Durbin to testify before the Judiciary panel, but the chief justice provided a “Statement on Ethics Principles and Practices” signed by all nine justices that described the ethical rules they follow about travel, gifts and outside income.

The statement provided by Roberts said that the nine justices “reaffirm and restate foundational ethics principles and practices to which they subscribe in carrying out their responsibilities as Members of the Supreme Court of the United States.”

The statement promised at least some small additional disclosure when one or more among them opts not to take part in a case. But the justices have been inconsistent in doing so since.

Read it all.

The Supreme Court is adopting its first code of ethics, in the face of sustained criticism over undisclosed trips and gifts from wealthy benefactors to some justices. https://t.co/a9p0n2ZKgz

— PBS NewsHour (@NewsHour) November 13, 2023

But sometimes lonely stands look better over time. When two Jehovah’s Witness sisters refused to say the Pledge of Allegiance in their public school classroom during World War II, they were decidedly unpopular. But their courage resulted in one of the most remarkable statements of constitutional principle in American history, from the Supreme Court’s 1943 ruling in West Virginia State Board of Education v. Barnette: “If there is any fixed star in our constitutional constellation, it is that no official, high or petty, can prescribe what shall be orthodox in politics, nationalism, religion or other matters of opinion, or force citizens to confess by word or act their faith therein.”

In a nation as polarized as our own, the definition of “outsiders” can vary wildly, depending on where they live. In one community, conservative Christians may dominate, and be tempted to censor speech they dislike, to “protect children” or defend the “common good.” In other communities, those same Christians will find their own speech under fire as “hateful” or “discriminatory.”

The consequence is an odd legal reality, an artifact of our divided times. Christians and drag queens — in different jurisdictions and in different courts — are both protecting the First Amendment from the culture wars. They’re both reaffirming a foundational principle of American liberal democracy: that even voices on the margins enjoy the same civil liberties as the powerful and the popular.

In his majority opinion, Justice Gorsuch stated the case well. “In this case,” he wrote, “Colorado seeks to force an individual to speak in ways that align with its views but defy her conscience about a matter of major significance.” The state does not possess such power. It must not possess such power. Otherwise the culture wars will consume the Constitution, and even our most basic rights to speak or not speak will depend on whether we can gain and keep political control. That is not the vision of American pluralism, and it is not the vision that will sustain a united, diverse American republic.

Read it all.

Justice Sotomayor is misstating the case. It was *stipulated* that the business would serve LGBT customers. It just wouldn't create expressive works that convey a message it finds objectionable, regardless of the identity of the customer. https://t.co/BJjZYRRWvB

— David French (@DavidAFrench) June 30, 2023

Groff argued that it was too difficult for employees to bring religious claims under Title VII of the Civil Rights Act, which prohibits workplace discrimination on various fronts, including religion.

The justices in a unanimous ruling written by conservative Justice Samuel Alito clarified a 1977 Supreme Court ruling called Trans World Airlines v. Hardison. The court said then that employers are not required to make accommodations if they would impose even a minimal or, using the Latin term preferred by the court, “de minimis,” burden.

That ruling built on the language of Title VII, which says an accommodation can be rejected only when there is an “undue hardship” on the employer.

The court on Thursday ruled that the hardship needs to be more than a minimal one.

Read it all.

The Supreme Court rules in favor of a Christian mail carrier who claimed the U.S. Postal Service did not do enough to accommodate his request not to work on Sundays in a case that will make it easier for employees to seek religious accommodations. https://t.co/mnNJqlWH88

— NBC News (@NBCNews) June 29, 2023

But neither Lorie Smith nor Jack Phillips turned away any customer because of an immutable characteristic or sexual preference or religious belief. Rather, they refused to create a message that conflicted with sincere convictions. If a straight cousin of a groom asked for a same-sex wedding site, Smith would have turned that person away, as well. If a gay customer wanted a website for his business, Smith would have created it. If a straight couple asked for a bawdy website or a website that declared Xenu the one true Lord of the universe, they too would have been rejected, because that idea also runs afoul of her evangelical Christian beliefs. It’s a shame that Cole and Sotomayor pretend not to comprehend the distinction.

Progressives like to act like Christian (or Islamic or Jewish) opposition to same-sex marriage is some newfangled ruse cooked up by activists to allow them to put “no gays allowed” signs in the shop windows. I assure you that the notion that true marriage is exclusively between one genetic man and one genetic woman is a generational notion. Before his “evolution” on the question, Democrat icon Barack Obama had tethered his opposition to gay marriage to theology.

Whether you agree with this stance or not is entirely irrelevant when it comes to the matter of speech. There is no Hurt Feelings clause in the Constitution. Rather than dealing with the question, Cole, who has a difficult time seeing anything in nonracial terms, lists a slew of scary slippery slope hypotheticals — among them: “Should an architecture firm that believes Black families don’t deserve fancy homes be permitted to turn away Black clients because its work is ‘expressive’?”

Here is a better question: Would Cole, who says the “A.C.L.U. has been this nation’s leading defender of free speech for more than a century,” call for the state to intervene in the case of an evangelical customer who wants to compel a gay designer to create a website for an organization that works to overturn same-sex marriage laws or preaches that acts of homosexuality are a mortal sin? Christians, after all, are also a protected group under anti-discrimination laws. The answer is: highly unlikely.

Read it all.

The Future Of The First Amendment Hinges On The 303 Creative Case Before The Supreme Courthttps://t.co/S6j4WBIPoC

— The Federalist (@FDRLST) December 5, 2022

I will take comments on this submitted by email only to KSHarmon[at]mindspring[dot]com.

Fortunately, in Carson v. Makin, the Supreme Court ruled that faith-based schools cannot be asked to shed their religious identity in order to participate in school-choice programs. As the majority opinion makes clear, Maine’s exclusion of faith-based schools from its tuition assistance program is neither constitutionally required nor constitutionally permissible.

Of course, before the twenty-first century, the state might have been forgiven for making an honest mistake. The Supreme Court’s Establishment Clause doctrine has been all over the map in the second half of the twentieth century. In 1980, many decisions seemed to prohibit students from using public funds to attend religious schools. Speaking of maps, for example, in Meek v. Pittenger (1975) and Wolman v. Walters (1977), the Court held that the Establishment Clause permitted states to provide secular textbooks, but not instructional materials such as maps, to faith-based schools. Seriously.

Thankfully, the Supreme Court’s Establishment Clause doctrine has taken a decidedly pro-religion turn in the past few decades. In decision after decision leading up to Carson, the Court has reiterated that the Constitution demands neutrality and prohibits hostility toward religious institutions and believers. Importantly, in Zelman v. Simmons-Harris (2002), the Court held that the Establishment Clause does not prohibit faith-based schools from participating in publicly funded private-school-choice programs.

Read it all.

Another Chink in the Armor of Legal Discrimination against Religious Schools @nsgarnett https://t.co/e9VNPzCGA6

— Public Discourse (@PublicDiscourse) July 6, 2022

The U.S. Supreme Court’s courageous decision in Dobbs v. Jackson Women’s Health Organization is a win for life and the Constitution. That historic ruling finally reverses the court’s disastrous opinion in Roe v. Wade—a decision that made up a constitutional right to abortion and resulted in the deaths of more than 60 million unborn children. Because of the court’s ruling in Dobbs, states may now fully protect unborn life.

The Mississippi law at issue in the case, the Gestational Age Act, protects unborn children and the health of their pregnant mothers based on the latest science. It protects unborn life after 15 weeks of gestational age—a point in time when babies can move and stretch, hiccup, and quite likely feel pain. It permits abortions to save the life of the mother or for severe fetal abnormalities. Despite the modesty of Mississippi’s law, the lower courts struck it down because no matter what science showed, or how strong a state’s interest in protecting unborn life was, under the Roe regime, states may not protect life until viability—about 22 weeks of gestational age.

Dobbs is a win for life. Fifty years of scientific progress and innovation establish what the Bible has always taught: Life begins at conception. Ultrasound technology allows expectant parents to see the truth of Psalm 139: Children are fearfully and wonderfully made from the very beginning.

Under Roe v. Wade, moreover, the United States has been an extreme outlier in abortion law and policy. As the chief justice noted during oral arguments, the United States is one of only six nations, including China and North Korea, that allow elective abortions through all nine months of pregnancy. The Washington Post recently ranked the United States as the fourth most liberal abortion country in the world. Most countries do not allow elective abortions at all, and 75 percent protect life after 12 weeks of gestation.

Read it all.

Here's is WORLD Opinions' second special edition editorial from @ADFLegal's Erin Hawley and @KWaggonerADF https://t.co/DPENWC7lgK

— Andrew T. Walker (@andrewtwalk) June 24, 2022

From left to right, not many people have had a kind word for Roe v. Wade, the 1973 Supreme Court decision that partially legalized abortion. Radical feminist Catharine MacKinnon called it “a study in male ideology” that “reaffirms what the feminist critique of sexuality criticizes: the public/private split.” Michael Kinsley, editor of “The New Republic”, called it “one of the worst things that ever happened to American liberalism” and warned that “there is a time bomb ticking away” inside it. Conservatives have, of course, registered disapproval often and loudly (sometimes explosively).

Roe v. Wade struck down a Texas law that made abortion a crime except when “procured or attempted by medical advice for the purpose of saving the life of the mother.” The court’s logic was not transparent (Kinsley calls it “a mess,” and many agree), but was essentially this: (1) A woman’s right to make reproductive decisions is part of a “right of privacy” implicit in the 14th Amendment to the constitution, which says that government may not “deprive any person of life, liberty, or property without due process of law; nor deny to any person within its jurisdiction the equal protection of the laws.” (2) A fetus does not have a “right to life” or to “equal protection” because, according to the court, “the word ‘person,’ as used in the Fourteenth Amendment, does not include the unborn.” (3) Constitutionally guaranteed rights may only be infringed when a “compelling” societal interest is at stake. In the case of abortion, society has two legitimate interests: to protect the health of pregnant women and to protect “potential life.” But these interests are not “compelling” from the moment of conception. The former becomes compelling only when the medical risks of abortion become comparable to those of normal childbirth, i.e. (as of 1983) during the second trimester. The latter becomes compelling only when the fetus becomes “viable,” or “capable of meaningful life outside the mother’s womb,” i.e. (as of 1973) during the third trimester. (4) What follows from all this, the court said, is that the state may regulate abortion during the second trimester, but only “in ways that are reasonably related to maternal health,” and may prohibit abortion during the third trimester “except where it is necessary . . . for the preservation of the life or health of the mother.”

Roe raised a host of questions, of two kinds. First: is the court’s reasoning persuasive? Does the constitution really recognize a “right of privacy,” even though it’s not mentioned anywhere in the text? Why doesn’t the 14th Amendment apply to fetuses, even though they are not mentioned anywhere in the text? What is “potential” life? Why does the state have a “compelling interest” in protecting it, even at the expense of actual persons? And why does that interest become compelling at viability rather than at conception or birth?

Read it all.

Today the United States Supreme Court ruled that “the Constitution does not confer a right to abortion,” overruling Roe v. Wade (1973). The decision will “return the issue of abortion to the people’s elected representatives … to be resolved like most important questions in our democracy: by citizens trying to persuade one another and then voting.” In the case of Dobbs v. Jackson Women’s Health Organization, a five Justice majority of the Supreme Court overruled both Roe and the 1992 decision Planned Parenthood v. Casey.[1]

The inherent value of human life is revealed in the Scriptures, and this biblical commitment is reflected in the Anglican Church in North America’s Constitution and Canons which calls all members and clergy “to promote and respect the sanctity of every human life from conception to natural death” (Title II.8.3).

Archbishop Beach commented:

While this decision doesn’t end abortion in the U.S., it will lead to fewer children being killed through abortion. We thank God for this limited victory, and the Anglican Church in North America recommits itself to serving mothers so they can embrace motherhood and welcome their children. We also continue to point the way to God’s healing and forgiveness for all who suffer physically and emotionally from their abortion experiences.

Read it all.

Let us give thanks to God for this decision and continue to work to safeguard and promote life. Let us also continue to care and minister to those who continue to suffer from the effects of abortion in their own lives. Read more at:https://t.co/tht8oSTEAl #SCOTUS

— ACNA (@The_ACNA) June 24, 2022

The Supreme Court on Friday eliminated the constitutional right to obtain an abortion, casting aside 49 years of precedent that began with Roe v. Wade.

The decision by Justice Samuel Alito will set off a seismic shift in reproductive rights across the United States. It will allow states to ban abortion, and experts expect about half the states to do so.

In one of the most anticipated rulings in decades, the court overturned Roe, which first declared a constitutional right to abortion in 1973, and Planned Parenthood v. Casey, which re-affirmed that right in 1992. The decision followed the leak in early May of a draft opinion showing that a majority of the justices were privately poised to take that step. On Friday, they made it official.

The vote was 6-3. Justices Clarence Thomas, Neil Gorsuch, Brett Kavanaugh, and Amy Coney Barrett joined Alito’s opinion. Chief Justice John Roberts did not join the opinion but agreed with the result and filed a separate opinion. The court’s three liberals, Justices Stephen Breyer, Sonia Sotomayor, and Elena Kagan, filed a joint dissent.

Read it all.

The Supreme Court voted 6 to 3 to overturn Roe v. Wade, ending the constitutional right to an abortion.

Read the majority opinion of the court: https://t.co/gGGw6aW8zs

— The New York Times (@nytimes) June 24, 2022

The Supreme Court ruled Tuesday that a Maine policy covering tuition for private schools but not religious schools violates the First Amendment.

Maine offers the tuition assistance in rural districts that do not have public schools. The challenge involved two private Christian schools, Bangor Christian Schools and Temple Academy, which didn’t meet the state’s “nonsectarian” requirement for families to qualify.

The court said such a requirement infringes on free exercise protections and that there was “nothing neutral” about the program.

Read it all.

The Supreme Court ruled Tuesday that a Maine policy covering tuition for private schools but not religious schools violates the First Amendment.https://t.co/L5pzqZZfb1

— Christianity Today (@CTmagazine) June 21, 2022

The question here is who believed they would benefit from leaking the opinion itself. That document was much more likely to rally liberals than conservatives. It brought home the fact that the court was poised to overrule Roe in much more concrete terms than merely leaking the vote. The opinion is also a full-throated attack on abortion rights and – with important caveats – substantive due process rights more broadly. And as a first draft – without the benefit of later refinement – it does not yet present the critique of Roe in its most persuasive form.

It is also important to look at the leak of the opinion through the lens of the fact that someone – almost certainly a conservative – had just before leaked the court’s tentative decision and the state of the voting to The Wall Street Journal. That leak was itself an extraordinary and unethical breach of confidences and certainly caused very deep concern inside the court.

My guess is that someone on the left felt somewhat justified in releasing the opinion in response. Through the opinion, one would see what the Journal was saying Kavanaugh and Barrett were considering. That leak was a historically unprecedented violation of the deepest and most solemn trust among the justices and the court’s staff. It wounded the institution.

Read it all.

How the unprecedented Supreme Court leak may have been a response to an earlier disclosure about the justices' private deliberations. @TomGoldsteinSB on what it all means for the court and its secrets. https://t.co/cms77T5KI4

— SCOTUSblog (@SCOTUSblog) May 5, 2022

The Supreme Court has voted to strike down the landmark Roe v. Wade decision, according to an initial draft majority opinion written by Justice Samuel Alito circulated inside the court and obtained by POLITICO.

The draft opinion is a full-throated, unflinching repudiation of the 1973 decision which guaranteed federal constitutional protections of abortion rights and a subsequent 1992 decision – Planned Parenthood v. Casey – that largely maintained the right. “Roe was egregiously wrong from the start,” Alito writes.

“We hold that Roe and Casey must be overruled,” he writes in the document, labeled as the “Opinion of the Court.” “It is time to heed the Constitution and return the issue of abortion to the people’s elected representatives.”

Read it all.

Breaking news: A majority of the Supreme Court is prepared to overturn the right to abortion established nearly 50 years ago in Roe v. Wade, according to a leaked draft of the opinion published Monday by Politico. https://t.co/kNmy2LFGnU pic.twitter.com/YFzp6Iy2OD

— The Washington Post (@washingtonpost) May 3, 2022

….in rationalizing our gambling regime by making it ever more universal, we’re following the same misguided principle that we’ve followed in other cases. With pornography, for instance, where the difficulty of identifying a perfectly consistent rule that would allow the publication of “Lolita” but not Penthouse has led to a world where online porn doubles as sex education and it’s assumed that the internet will always be a sewer and we just have to live with it. Or now with marijuana, where the injustice and hypocrisy of the drug war made a good case for partial decriminalization, but stopping at decriminalization may be impossible when the consistent logic of commercialization beckons.

The reliability of this process doesn’t mean that it can never be questioned or reversed. Part of what we’re witnessing from #MeToo-era feminism, for instance, is a backlash against the ruthless logic of an unregulated sexual marketplace, and a quest for some organic form of social regulation, some new set of imperfect-but-still-useful scruples and taboos.

But it’s a lot easier to tear down an inconsistent but workable system than it is to build a new one up from scratch — and the impulse to rebuild usually becomes powerful only once you’ve reached the bottom of consistency’s long slope.

I’m not sure where we are with gambling’s cultural trajectory. But every time this playoff season served up another ad for Caesars Sportsbook, it felt like a sign that we’ve accelerated downward, with a long way yet to fall.

Read it all.

The damage from a growing gambling industry "is likely to fall disproportionately on the psychologically vulnerable and economically marginal, the strong preying on the weak,” writes @DouthatNYT. https://t.co/yST3quRFMM

— New York Times Opinion (@nytopinion) February 13, 2022

It was just before Christmas, and Jean H. Toal, then the chief justice of the South Carolina Supreme Court, was in a bind. She needed an emergency order drawn up, but the courthouse in Columbia, the state capital, was empty. She was relieved to reach someone who assured her, “Chief, I got it.”

It was J. Michelle Childs, then a state circuit court judge who had made a name for herself as one of the most adept on the bench.

“Within an hour she came back to me, and she had a complete order with footnotes and everything,” Judge Toal, now retired, recalled of the day more than a dozen years ago. “Days later, she delivered her child. So, she was über-pregnant and it was right at Christmas time, but she had her work ethic on full steam, as she always did.”

The memory sums up the reputation of Judge Childs, now a Federal District Court judge in South Carolina, who rose through the ranks of state schools, local government and the South Carolina legal system to the short list of potential Supreme Court nominees for President Biden, who has pledged to nominate a Black woman to replace Justice Stephen G. Breyer.

Read it all.

A Court Candidate With No Ivy On Her Resume

▫Long-shot contender whose background may prove helpful
▫@EricaLG @EricaLG▫https://t.co/e0jOis1zRR @nytimes #frontpagestoday #USA pic.twitter.com/V9aVZIx8O3

— (@ukpapers) February 10, 2022

The latest Supreme Court case over public funding for religious schooling examines a policy in Maine, a state dotted with small towns too tiny to run their own public schools. Over half of the state’s school districts (officially called “school administrative units” or SAUs for short) contract with and pay tuition costs to another nearby school of the parents’ choice—public or private.

And that’s where the hangup lies. By law, Maine mandates that partnering private schools be “nonsectarian in nature, in accordance with the First Amendment of the United States Constitution” to receive the funding, and three Christian families in the state are challenging the requirement.

The Supreme Court will hear their case, Carson vs. Makin, this week. The decision could set further precedent in defining the distance between church and state and the approach to religious freedom itself, as it makes a distinction between barring public funding due to religious identity of the recipient and barring funding to the religious purpose it would be used to advance.

Read it all.

Is there a difference between the state blocking funding to Christian schools because they are Christian and doing so because they teach Christian lessons?

A look at the church-state separation case coming to the Supreme Court this week: https://t.co/L5pzqZZfb1

— Christianity Today (@CTmagazine) December 6, 2021

The United States Supreme Court ruled decisively in favor of a Catholic foster care agency on Thursday, with all nine justices agreeing that the city of Philadelphia violated the First Amendment’s protection of religious liberty when it ended a contract with Catholic Social Services (CSS) over service to…[prospective adoptees with same-sex parents].

“It is plain that the City’s actions have burdened CSS’s religious exercise by putting it to the choice of curtailing its mission or approving relationships inconsistent with its beliefs,” wrote Chief Justice John Roberts.

Philadelphia claimed the city could not contract foster care services with a Catholic agency that only served married heterosexual couples because of an antidiscrimination law ensuring that everyone, regardless of sexual orientation, has equal access to public accommodations. The court found, however, that foster parenting is not a “public accommodation,” since certification is not available to the public and “bears little resemblance to staying in a hotel, eating at a restaurant, or riding a bus.”

According to the court, there was also no evidence presented in the record that the Catholic agency’s policies ever prevented a same-sex couple from fostering a child, or that it would have that effect.

Read it all.

Today, all 9 Supreme Court justices agreed that the city of Philadelphia violated the First Amendment’s protection of religious liberty when it ended a contract with Catholic Social Services over service to LGBT people. https://t.co/8euptLFoNz

— Christianity Today (@CTmagazine) June 17, 2021

Read it all.

It is with great joy and thanksgiving to God that we receive news today that the United States Supreme Court (SCOTUS) has let stand the unanimous May 2020 ruling of the Texas Supreme Court (TXSC),which found in favor of the Diocese and diocesan Corporation.

Responding to two Petitions and replies, SCOTUS denied the requests of The Episcopal Church and All Saints Episcopal Church in Fort Worth for a review of the May 2020 opinion. That opinion upheld state trust law and statutes governing unincorporated associations, affirming ownership of properties throughout the Diocese is governed by our Constitution and Canons and administered by the diocesan Corporation.

For all practical purposes this ends the appeals process that began in 2015 following the Second Summary Judgement of the trial court in Fort Worth.

Read it all.

With its denial of certiorari (review) this morning to two of the Episcopal Church in the USA’s (“ECUSA’s”) groups in Fort Worth, Texas, the United States Supreme Court has put to rest the multiple adverse claims made for the last twelve years against the Episcopal Diocese of Fort Worth. All of those various claims, and the stages of their ups and downs, have been chronicled on this blog, which began just before the legal disputes emerged. It is gratifying, therefore, to report that this blog has managed to outlive, along with (retired) Bishop Jack Iker and his faithful flock, the Machiavellian intrigues of the schemers at 815 Second Avenue to hound and intimidate them into surrender of their properties.

Denial of review of the May 2020 decision by the Texas Supreme Court puts finally to rest ECUSA’s dogged attempts to enforce its notorious and one-sided Dennis Canon in Texas. The brazenness of that Canon, which attempted unilaterally to impose (after the fact) an enforceable, perpetual trust everywhere on all the parish properties of its members in ECUSA’s favor, ran directly into long-standing Texas trust law, which requires the consent of a property’s owner to place it into a trust, and which also requires express language to make a trust irrevocable. The Dennis Canon failed the test on both of those grounds.

Nor could ECUSA succeed by giving its successor group the same name as Bishop Iker’s Diocese, and then pretending to assume its identity. The Texas Supreme Court saw through those machinations, and held that the majority controlling the Diocesan corporation, and not ECUSA’s minority faction, were the true successors under Texas corporate law to the group that founded the original Diocese in 1983. In that respect, the Texas courts were far more perspicacious than the feckless courts in California, New York, Pennsylvania and elsewhere who simply allowed ECUSA’s attorneys to pull the wool over their eyes, and pretend that the newest kid on the block was actually the oldest, who (they claimed) had been there the whole time.

Read it all.

Alan Haley–As expected, TEC Diocese in Fort Worth loses its Appeal to the US Supreme Court of a Unanimous Texas Supreme Court Ruling Against them https://t.co/qgbZ9ZQiv2 #scotus #law #episcopalchurch #Litigation #ethics #texas #religion #usa pic.twitter.com/cKpqdrTuSF

— Kendall Harmon (@KendallHarmon6) February 22, 2021

Legal theorist Helen Alvaré observes that the twentieth century saw a sea change in jurisprudence, whereby “certain forms of sexual expression achieved constitutional status and came to be identified with nothing less than a human being’s ‘identity.’”[1] Tracing this change, beginning with the early contraception cases Griswold v. Connecticut (1968) and Eisenstadt v. Baird (1972), Alvaré shows how the Supreme Court gradually came to embrace a constructivist view of personal identity that was inextricably linked to sexual activity. We become who we are, that is, through our sexual choices.

This is especially true for women, the Court held, because of the possibility of motherhood resulting from said sexual choices. If women are unduly burdened by children, which might disincentivize them to engage in sexual relationships, what happens to their identity? This identity-formation-through-sex rationale is especially clear in the notorious 1992 Planned Parenthood v. Casey decision. Since the 1973 Roe v. Wade decision legalizing abortion, the Court writes, women have “organized intimate relationships and made choices that define their views of themselves and their places in society, in reliance on the availability of abortion in the event that contraception should fail.”[2] Without contraception and abortion, what happens to women’s self-definition? This idea is driven home by the purplest of legal prose in the decision’s famous “mystery of human life” passage:

These matters [of reproduction], involving the most intimate and personal choices a person may make in a lifetime, choices central to personal dignity and autonomy, are central to the liberty protected by the Fourteenth Amendment. At the heart of liberty is the right to define one’s own concept of existence, of meaning, of the universe, and of the mystery of human life. Beliefs about these matters could not define the attributes of personhood were they formed under compulsion of the State.[3]

“While Casey’s soaring language is certainly subject to varying interpretations,” Alvaré observes, “at the very least it can be said that it firmly linked women’s ability to avoid childrearing following sexual intercourse, with her interest in forming her personal identity.”[4]

Read it all.

“When the Supreme Court intones that sexuality is a privileged vehicle through which people “define their views of themselves and their places in society,” it is elevating sexuality to totemic status.” https://t.co/dMjMMWXKuJ

— Josh Hochschild (@JoshHochschild) January 27, 2021

America’s history of tolerance and accommodation, which the late Justice Ginsburg invoked at oral argument, reflected America’s constitutional institutions. When legislators representing diverse people and values meet on equal footing to debate and deliberate, the product is informed by values of toleration. The legislative process’s inherent tendency toward compromise and moderation is itself a crucial institution for the perpetuation of tolerance. But in dominance, intolerance.

And when Americans see the lawmaking power as a weapon to be won in warlike presidential elections and then wielded against one’s opponents for the four years that follow—not the shared responsibility of legislators—they too lose their capacity for tolerance and their memory of toleration.

Rebuilding that capacity, and restoring that memory, requires a return to Madison—not a “Madison’s Razor” of Rakove’s creation, but the genuinely republican constitutional institutions that Madison himself labored to help create, and the republican virtues that Madison knew undergirded those institutions.

Read it all.

In a country governed primarily by uncompromising regulators who make law unilaterally, the recent rupture in Americans’ views of religion and religious liberty has become much more ominous.

Read more from @adamjwhitedc ▸ https://t.co/cpFx3OmN01

#RFRA #Tolerance pic.twitter.com/AhlgxVHV89

— Commentary Magazine (@Commentary) December 24, 2020

Today in Washington, D.C., attorneys for the Diocese and Corporation have filed two Briefs in Opposition with the U.S. Supreme Court, responding to Petitions initiated in that Court by the TEC parties and All Saints’ Church (Fort Worth) in October. (The property of All Saints’ Church in Fort Worth was separated by the trial court from the rest of the property suit in 2015.)

The October Petitions asked for a review of the unanimous opinion issued in May of this year by the Texas Supreme Court, which ruled in favor of the Diocese and Corporation.

Read it all and follow the links.

Federal employees who violate religious freedom protections can now be held liable for monetary damages they cause after the Supreme Court ruled Thursday that the law allows people of faith to seek financial relief.

Money is “the only form of relief that can remedy some … violations,” wrote Justice Clarence Thomas in the court’s unanimous decision.

Justice Amy Coney Barrett did not take part in the case because oral arguments took place before her Senate confirmation.

Read it all.

Supreme Court rules that religious freedom law allows for monetary damages https://t.co/GvwpT3bXsy pic.twitter.com/ABRIsA6KLC

— Kelsey Dallas (@kelsey_dallas) December 10, 2020

During a public health emergency, individual freedoms can be curtailed where necessary to protect against the spread of disease. Most of this authority is at the state and local, not the federal, level. But when public health measures intrude on civil liberties — not just religious exercise, but other constitutional rights — judges will insist that the measures be nonarbitrary, nondiscriminatory and no more restrictive than the facts and evidence demand.

The real disagreement between Chief Justice Roberts and Justice Breyer and the majority was over a technical though important detail. This disagreement made the court look more fractured than it actually was. Just days before the decision, on Nov. 19, the governor’s lawyers sent the court a letter stating that he had redrawn the red and orange zones in Brooklyn, conveniently putting the churches and synagogues that were the focus of the litigation into the more permissive yellow zone. The letter cited no reasons for the reclassification and offered no assurance that it might not happen again, at a moment’s notice, with no more explanation than this time.

The court majority regarded the governor’s about-face as too fleeting and changeable to derail a decision on the merits. Chief Justice Roberts and Justice Breyer, by contrast, concluded that the change eliminated any need for the court to intervene, at least for now. That is a reasonable position (though we disagree with it) — and it does not indicate any fundamental disagreement with the five justices in the majority about the need to protect civil liberties even in a time of emergency.

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"The right to exercise religion in accordance with conscience is one of the most important in the Bill of Rights, and it is time for mayors and governors — and courts — to treat it that way.” https://t.co/pCAmIIKsxF

— Josh Hammer (@josh_hammer) December 2, 2020

The majority concluded that the restrictions are not “neutral” or of “general applicability.” This finding is key in the court’s religious-liberty jurisprudence. Restrictions that apply to everyone and do not target religion but incidentally affect religious observance (e.g., a general ban on peyote use that happens to burden the rites of some religious groups) are presumptively valid. By contrast, restrictions that single out religion — i.e., that are not neutral or generally applicable — are subject to the “strict scrutiny” analysis that the court applies to burdens on fundamental freedoms. That means the state, to justify its restrictions, must show that they are narrowly tailored to serve a compelling governmental interest.

Here, there is no gainsaying that the state has a compelling interest in stemming the spread of a potentially deadly infectious disease. Yet, the court observed that “it is hard to see how the challenged regulations can be regarded as narrowly tailored.”

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For Thanksgiving, the Supreme Court upholds religious liberty https://t.co/ldquzsllip

— Andy McCarthy (@AndrewCMcCarthy) November 29, 2020

Read it all and follow the links.

The more I looked into People of Praise, the more I had two simultaneous thoughts: First, many millions of American Christians see echoes of their lives in Judge Barrett’s story. And second, lots of folks really don’t understand both spiritual authority and spiritual community. The concerns about Barrett reflect in part the glaring gaps in religious knowledge in elite American media.

In other words, New York Times executive editor Dean Baquet was right when he told NPR’s Terry Gross, “We don’t get religion. We don’t get the role of religion in people’s lives.”

So let’s try to “get religion,” especially in the context of close-knit religious fellowships like People of Praise. First, outside of true cults, the concept of spiritual authority and spiritual “headship” is quite divorced from the lurid fears and imaginations of many Americans—and it rarely has anything at all to do with law, politics, or the American Constitution. It has much more to do with religious doctrine and religious practice—orthodoxy and orthopraxy. And words and terms that sound strange to secular ears are simply biblical and traditional to countless Christian Americans.

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Excellent. ‘NYT executive editor Dean Baquet was right when he told NPR’s Terry Gross, “We don't get religion. We don't get the role of religion in people's lives.”’ “Should Americans Worry About Amy Coney Barrett and 'People of Praise'?” by @thedispatch https://t.co/Mnsxx7Opv4

— David Hartmann (@DavidHartmann) September 27, 2020

President Donald Trump on Saturday announced his nomination of federal Judge Amy Coney Barrett to the Supreme Court to fill the seat of the late Justice Ruth Bader Ginsburg.

The move to select Barrett sets up what promises to be a bitter confirmation fight less than two months before Election Day — an unexpected twist in an election season already fraught with the coronavirus pandemic and attempts by the president to undermine confidence in the result.

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BREAKING: President Donald Trump has nominated Judge Amy Coney Barrett to the Supreme Court. The move on Saturday caps a dramatic reshaping of the federal judiciary that will resonate for a generation. https://t.co/3ra389RiKx

— 13WREX (@13WREX) September 26, 2020