Category : Supreme Court
(Episcopal Diocese of Fort Worth) U.S. Supreme Court upholds Texas ruling on bishop Ryan Reed led Diocese and Corporation
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.
Alan Haley–TEC Diocese in Fort Worth loses its Appeal to the US Supreme Court of a Unanimous Texas Supreme Court Ruling Against them
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.
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.’” 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.” 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.
“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.”
“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.
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.
— 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.
— Kelsey Dallas (@kelsey_dallas) December 10, 2020
(NYT Op-ed) Michael W. McConnell and Max Raskin: The Supreme Court Was Right to Block Cuomo’s Religious Restrictions
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.
"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.”
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.
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.
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
Justice Ruth Bader Ginsburg, the demure firebrand who in her 80s became a legal, cultural and feminist icon, died Friday. The Supreme Court announced her death, saying the cause was complications from metastatic cancer of the pancreas.
The court, in a statement, said Ginsburg died at her home in Washington, D.C., surrounded by family. She was 87.
“Our nation has lost a justice of historic stature,” Chief Justice John Roberts said. “We at the Supreme Court have lost a cherished colleague. Today we mourn but with confidence that future generations will remember Ruth Bader Ginsburg as we knew her, a tireless and resolute champion of justice.”
Architect of the legal fight for women’s rights in the 1970s, Ginsburg subsequently served 27 years on the nation’s highest court, becoming its most prominent member. Her death will inevitably set in motion what promises to be a nasty and tumultuous political battle over who will succeed her, and it thrusts the Supreme Court vacancy into the spotlight of the presidential campaign.
Justice Ruth Bader Ginsburg, Champion Of Gender Equality, Dies At 87 https://t.co/V0b7oSFYPy
— NPR Politics (@nprpolitics) September 18, 2020
The U.S. Supreme Court reaffirmed in two 7-2 rulings Wednesday (July 8) that churches and religious organizations are free to make employment and health insurance decisions based on their convictions.
In one ruling, the justices reiterated their support for a “ministerial exception” that enables churches and other religious bodies to hire and fire based on their beliefs. They had ruled unanimously in 2012 in favor of such an exception. In consolidated cases, two Catholic schools in the Archdiocese of Los Angeles chose not to renew contracts for two fifth-grade teachers based on what they said was poor performance.
In its other opinion, the high court upheld federal rules that protect the rights of employers with religious or moral objections to the Obama-era, abortion/contraception mandate. The opinion came after a seven-year legal battle by the Little Sisters of the Poor, a Catholic order that serves the poverty-stricken elderly, to gain an exemption from the requirement.
The Southern Baptist Ethics & Religious Liberty Commission (ERLC) commended both decisions as victories for religious freedom.
“If a religious organization cannot recruit leaders who agree with the beliefs and practices of those organizations, then there can be no true religious freedom. The Court recognized that today,” ERLC President Russell Moore said in a written statement of the “ministerial exception” opinion.
High court delivers 2 religious liberty wins https://t.co/InfxcbnRkU
— Tom Roten™ (@TomRoten) July 9, 2020
It is here that Farrow’s book is so singularly helpful. The essay “Autonomy: Sic transit anima ad infernum” is worth the price of the book all by itself. In it he traces with both remarkable depth and enviable conciseness the rise of the modern self: the autonomous self-creator to whom reality must bend or, better still, for whom reality is merely what works best for the individual concerned. With roots in Rousseau and Nietzsche, this self lies behind Anthony Kennedy’s oft-cited fantasy of selfhood in Casey and lurks in the background of all the subsequent Supreme Court rulings on matters involving sexuality, up to and including Bostock. Indeed, Farrow makes the necessary point:
The autonomous will really has no choice but to attack the body as well as the mind. For the body is the most obvious locus of the given, the most stubborn impediment to the power claimed by the will.
Transgenderism is the logical outcome of all this. In fact, the annihilation of gender as a stable category tout court is the logical outcome—a point that seems to have eluded Justice Gorsuch, who apparently wants to keep his binary categories while not realizing the metaphysical depths of the revolution he has now placed into law.
The shock and awe surrounding the Bostock ruling perhaps indicates that the old task of apologetics is now being oddly reversed. The pressing pastoral need of the hour for the church is not to explain the faith to the world but rather first to explain the world to the faithful. If Richard Rorty’s famous quip—the truth is what your contemporaries let you get away with saying—works as a descriptive rather than prescriptive principle in terms of cultural dynamics, in terms of which arguments work and which do not, then it behooves us to ask in what kind of culture the stated logic of the Bostock decision has come to make sense. If Christians do not understand the wider context, then they will continue to underestimate the true depth of the cultural problem, be perplexed at the speed of apparent change, and be disturbed by new developments. And that will make it very hard to navigate this world as both good citizens and good stewards of the gospel.
It behooves us to ask in what kind of culture the stated logic of the “Bostock” decision has come to make sense.https://t.co/WEDQUHVIaq
— First Things (@firstthingsmag) June 28, 2020
Kevin Kallsen and AS Haley talk about the latest court victories for the ACNA. And, some of the challenges the US Supreme Court’s recent decisions will bring religious communities.
(NYT Op-ed) Russell Moore–Monday’s Supreme Court decision on sex discrimination was a blow for religious freedom. That’s a problem — for both sides
Whatever the caricatures, almost no one, even among the most religiously conservative, argues that religious freedom outweighs every other concern. Everyone recognizes that as with freedom of speech and other constitutional guarantees, there will be some hard cases.
But it would be tragic to trample over the consciences of citizens whenever their beliefs come into conflict with the fluctuating norms of secular sexual orthodoxy. Likewise, almost no rational person would suggest that a religious-freedom consensus would evaporate our “culture war” disputes. We have real differences, and they are not going away anytime soon. What’s perilous right now is how we choose to have these arguments.
One need not agree with Christians or Muslims or Orthodox Jews or others on marriage and sexuality to see that such views are not incidental to their belief systems. They did not emerge out of a political debate, and they won’t be undone by political power. In many cases, these beliefs aren’t even, first of all, about sex or family or culture in the first place, but about what these religious people believe undergird them. In the case of 2,000 years of small “o” (and big “O,” for that matter) orthodox Christians, this is the belief that sexual expression is confined to the union of a man and a woman because marriage is an icon of the gospel union of Christ and his church.
That does not mean, in any way, that all Americans of deep religious belief agree on how to address these questions in the public square. One could find multiple views — even in church pews — about what, for instance, public nondiscrimination laws should be. It does mean, though, that such views are not peripheral to the missions of many religious institutions. One cannot simply uproot them and expect these people to adjust their consciences to fit the new cultural expectation.
Just How Secular Should America Be? https://t.co/e9r96M0CVO
— Dub Oliver (@DrDub_UU) June 18, 2020
Douglas Laycock, a law professor at the University of Virginia, has been a longtime supporter of same-sex marriage. What’s made him unusual is that in recent years he’s been trying to make the case to liberals that “same-sex marriage and religious liberty can co-exist.” In 2017 he co-authored an article at Vox with another law professor to argue that Jack Phillips, the Evangelical Christian baker in Colorado at the center of the Masterpiece Cakeshop Supreme Court case, should be allowed to follow his conscience to not bake a cake for a same-sex wedding.
Laycock has also been a longtime supporter of enacting a federal gay-rights non-discrimination law, but he doesn’t support the Equality Act, a bill just approved by the House of Representatives that would add “sexual orientation” and “gender identity” to the 1964 Civil Rights Act, because it would “crush” conscientious objectors.
“It goes very far to stamp out religious exemptions,” Laycock tells National Review in an email. “It regulates religious non-profits. And then it says that [the Religious Freedom Restoration Act] does not apply to any claim under the Equality Act. This would be the first time Congress has limited the reach of RFRA. This is not a good-faith attempt to reconcile competing interests. It is an attempt by one side to grab all the disputed territory and to crush the other side.”
— National Review (@NRO) May 18, 2019
Now, whatever one may think about these three cases as a matter of ethics or policy, Congress acted in 1964 to address only the first case—and it has explicitly rejected policies to address the latter two. People can debate whether Congress’s decision not to pass sexual orientation and gender identity laws is or is not a good thing, but as a legal matter, the issue is clear. Discrimination on the basis of sex is prohibited, but discrimination on the basis of sexual orientation and gender identity is not—for it is not included in “sex” even if “inextricably bound up with sex.”
Of course, there is good reason why Congress has rejected calls to legally prohibit “discrimination” on the basis of “sexual orientation and gender identity.” Much of what the activists contend is “discrimination” is simply disagreement about human sexuality, where acting based on true beliefs about human sexuality is redescribed as discriminatory.
The Implications of Gorsuch’s Ruling
Which is why it is troubling that Gorsuch wasn’t willing to consider what his theory of sex discrimination entails for other employment considerations or for other federal laws. He notes that many people:
worry that our decision will sweep beyond Title VII to other federal or state laws that prohibit sex discrimination. And, under Title VII itself, they say sex-segregated bathrooms, locker rooms, and dress codes will prove unsustainable after our decision today. But none of these other laws are before us; we have not had the benefit of adversarial testing about the meaning of their terms, and we do not prejudge any such question today. Under Title VII, too, we do not purport to address bathrooms, locker rooms, or anything else of the kind. The only question before us is whether an employer who fires someone simply for being homosexual or transgender has discharged or otherwise discriminated against that individual “because of such individual’s sex.”
But the simple test Gorsuch applied to answer “yes” to this question yields ready answers in all these other contexts. Just recall the bathroom and dress code examples given above. Or consider a case of athletics, where “changing the [student’s] sex would have yielded a different choice by the [principal].” A high school male who identifies as a girl but is prevented from entering the girls’ locker room or playing on the girls’ basketball team. What would Gorsuch say? “the [principal] intentionally penalizes a person identified as male at birth for traits or actions that it tolerates in a [student] identified as female at birth.”
Gorsuch’s position would either require the elimination of all sex-specific programs and facilities or allow access based on an individual’s subjective identity rather than his or her objective biology. It is telling that Gorsuch is evasive about which of these outcomes is required by his theory.
— Robert P. George (@McCormickProf) June 17, 2020
The vision of humanity, of the person and its innate character, meaning, and dignity has been redefined by the act of stripping away its definition. It is a nihilistic vision in which the great fallacy of the Enlightenment, cogito, ergo sum, is elevated from intellectual narcissism to law of the land.
Of course, what the court giveth, the court can taketh away — blessed be the name of the court. Many are now predicting, based on Justice Gorsuch’s pointed reference to religious liberty, that we may soon see a companion decision which significantly broadens the ministerial exception. The court may yet allow, in the name of free exercise, for a host of religiously minded institutions to suddenly deem their social workers, teachers, administrators, even janitors, to be ‘ministers’ of the faith.
Such a ‘solution’ would, in fact, solve nothing.
Rather, it has the potential to screw the lid down tighter on the pressure building up on both sides: among those who believe with sincerity that male and female are not states of mind but facts of being, and those who believe that a person can redefine themselves at will as fundamentally as they are seeking to redefine our history and society.
It’s time for religious conservatives to bring forward the best of our ideas on every policy affecting this nation. We should be out in the forefront leading on economics, on trade, on race, on class, on every subject that matters for what our founders called the “general welfare;” because we have a lot to offer, not just to protect our own rights, but for the good of all of our fellow citizens; because as religious believers, we know that serving our fellow citizens—of whatever their religious faith, whatever their commitments may be—serving them, aiding them, working for them, is one of the signature ways that we show a love of neighbor. It’s time for religious conservatives to do that.
It’s time for religious conservatives to take the lead rather than being pushed to the back.
It’s time for religious conservatives to stand up and speak out rather than being told to sit down and shut up.
And because I’m confident that people of faith, of goodwill, all across this country are ready to do that, and want to do that, and have something to offer this country—and every person in this country, whatever their background or income or race or religion—because of that, I’m confident in the future. But I’m also confident that the old ways will not do.
So, let this be a departure. Let this be a new beginning, let this be the start of something better.
— Ryan T. Anderson (@RyanTAnd) June 16, 2020
The statute has barred discriminations based on “sex” as well as race. As Justice Alito pointed out, virtually no one in 1964 could have dreamed that the statute barred those who would have an aversion to the homosexual life or the transgendered. But I warned myself, in an earlier piece, that it just would not do for the conservatives to cite the dictionaries on the meaning of sex in 1964. The liberals would be free to play the trump card of Lyman Trumbull. Trumbull had steered the Fourteenth Amendment to passage in the Senate, and he had to assure his colleagues up and down that there was nothing in the Equal Protection Clause that barred those laws in Illinois as well as Virginia that barred marriage across racial lines. But now we have an amplified and clearer sense of why that principle on racial discrimination would bar those laws on miscegenation. Judges could easily argue now in the same way that we must bring to the Civil Rights Act a more amplified view of what “sex” has come to mean. The only way to deal with that argument is to make the move that conservative judges have been so averse to making: to move beyond the text of the statute to those objective truths, confirmed in nature, on the differences that must ever separate males from females.
That was the understanding of “sex” that Justice Alito had in mind as he countered every case and example cited by Gorsuch. Justice Gorsuch noted the many ways in which the meaning of discrimination on the basis of sex could extend to sexual harassment or simply treating people differently on the basis of sex. A woman is refused a job because she has children at home, while the job is not refused to a man with children at home. But as Alito points out, at every turn the discrimination pivots on the difference between men and women, as that difference has been plain enough for millennia. The Western States had long established policies barring discriminations based on “sex” in education, and the Nineteenth Amendment had drawn on the same understanding when it barred the denial of the right to vote “on account of sex.” It was understood in all cases that the laws were assuming the biological definition of sex.
Ryan Anderson, drawing on the full range of texts in biology, condensed the truth of the matter in this way: “Sex, in terms of male or female, is identified by the organization of the organism for sexually reproductive acts.” The Congregation for the Doctrine of Faith noted years ago that there has not always been an Italy or Hungary, but as long as there are human beings, there will be males and females. That is the purpose, or the telos, or the very reason that we have males and females. This was the understanding that Justice Alito was seeking so artfully to defend. But he defended it entirely as the meaning of sex contained in a long list of statutes and the Constitution. What he could not quite move himself to say was that this was indeed the inescapable truth of the matter, the only coherent way of explaining what sex must really mean. There is something, in the shaping of conservative judges, that makes them deeply reluctant to make that move beyond “tradition” and statutes to the moral truth of the matter.
The effects of “Harris Funeral Homes v. EEOC” will ripple out widely in our country, touching and disfiguring our private lives.https://t.co/hitCdDXOyl
— First Things (@firstthingsmag) June 18, 2020
President of U.S. Roman Catholic Bishops’ Conference Issues Statement on Supreme Court Decision on Legal Definition of “Sex” in Civil Rights Law
I am deeply concerned that the U.S. Supreme Court has effectively redefined the legal meaning of ‘sex’ in our nation’s civil rights law. This is an injustice that will have implications in many areas of life.
By erasing the beautiful differences and complementary relationship between man and woman, we ignore the glory of God’s creation and harm the human family, the first building block of society. Our sex, whether we are male or female, is part of God’s plan for creation and for our lives. As Pope Francis has taught with such sensitivity, to live in the truth with God’s intended gifts in our lives requires that we receive our bodily and sexual identity with gratitude from our Creator. No one can find true happiness by pursuing a path that is contrary to God’s plan.
Every human person is made in the image and likeness of God and, without exception, must be treated with dignity, compassion, and respect. Protecting our neighbors from unjust discrimination does not require redefining human nature.
We pray that the Church, with the help of Mary, the Mother of God, will be able to continue her mission to bring Jesus Christ to every man and woman.
(CT) Legal experts worry that ruling in landmark workplace discrimination cases can’t provide the nuanced exemptions evangelicals have advocated for
In an article for Christianity Today’s ChurchLawAndTax.com, attorney and senior editor Richard Hammar said churches retain important protections with employment decisions pertaining to clergy, despite Monday’s ruling. However, Monday’s decision fosters greater uncertainty for churches with employees in nonministerial roles, he said.“
Churches that take an adverse action against an employee or applicant for employment based on religious considerations should describe their action appropriately,” Hammar said. “Refer to the religious or doctrinal principle at issue, and avoid generic labels like ‘sex’ or other gender- or sexuality-based labels.”
Russell Moore, president of the Southern Baptist Ethics & Religious Liberty Commission, wrote that the ruling will have “seismic implications for religious liberty, setting off potentially years of lawsuits and court struggles, about what this means, for example, for religious organizations with religious convictions about the meaning of sex and sexuality.”
“This Supreme Court decision should hardly be surprising, given how much has changed culturally on the meanings of sex and sexuality,” he said. “That the ‘sexual revolution’ is supported here by both ‘conservatives’ and ‘progressives’ on the court should also be of little surprise to those who have watched developments in each of these ideological corners of American life.”
[Justice Byron] White then rejected the notion that TWA should have to pay “premium wages” to a substitute, wrecking employment opportunities for many religiously observant employees. “To require TWA to bear more than a de minimis cost in order to give Mr. Hardison Saturdays off is an undue hardship,” he wrote. He justified this repudiation of respect for conscience by declaring that if TWA bore any cost whatever, it “would involve unequal treatment of employees on the basis of their religion.” Never mind that any accommodation by definition results in unequal treatment.
Accommodating religious observance usually requires more than “de minimis” cost and inconvenience. By defining religious accommodation as voluntary cost-free etiquette, Justice White empowered bosses to treat an employees’ religion as a mere inconvenience.
Justice Thurgood Marshall declared in dissent: “Today’s decision deals a fatal blow to all efforts under Title VII to accommodate work requirements to religious practices.” He concluded that “one of this Nation’s pillars of strength—our hospitality to religious diversity—has been seriously eroded.”
In Patterson v. Walgreen, the drugstore chain claimed that it had accommodated Mr. Patterson’s religious observance by offering him a lower-paying position in which he could observe the sabbath and by allowing him to swap shifts with other employees who wouldn’t have to be paid extra. Justices Samuel Alito, Clarence Thomas and Neil Gorsuch said they were prepared to overrule White’s noxious Hardison declaration. But they believed there were too many technical hurdles in Patterson v. Walgreen to make it “a good vehicle for revisiting Hardison.”
I am an Orthodox Jew, and I’ve been blessed with accommodative employers for nearly all of my professional life. Read it all.
A blown opportunity for SCOTUS to come down strong on the side of religious liberty. https://t.co/Gvau1qo1ii
— Josh Hammer (@josh_hammer) March 5, 2020
Ultimately, the Court in Trinity rejected the fungibility argument, a position that Justice Stephen Breyer reaffirmed in the opening arguments of Espinoza. The proposition, Breyer said, that the state will “give police protection to all schools, all people, but no religious institution” is a facially “unconstitutional” one. Lawyers for the mothers suing in Espinoza agreed, arguing that the revocation of their children’s scholarships was an unconstitutional exercise in religious discrimination: the denial of a neutral public benefit — a scholarship to be used as they please — because of their status as religious persons.
Justice Brett Kavanaugh’s rejoinder to the respondents during opening arguments helps to explain the fundamental difference between Espinoza and Locke. While he conceded that “funding religion, funding religious schools generally or training of clergy is . . . an establishment clause-concern,” as argued in Locke, Kavanaugh claimed that Espinoza raises “a separate issue when you set up a neutral-benefit program — police, fire, or scholarships — and allow people to use those things, allow religious institutions to obtain the benefits of those things on a non-discriminatory basis.”
Kavanaugh’s assertion reaches the question at the heart of Espinoza: Is it constitutional for a state to withhold a neutral public benefit — here, a scholarship that parents can use at either a secular or religious private school — because the recipient of that benefit might use it in furtherance of a religious end? The plaintiffs acknowledge that states do not have an obligation to subsidize private education. If a state decides to do so, however, it has a constitutional duty to treat all of its citizens, religious and non-religious alike, with an even hand. That duty is what’s at stake here, and we won’t have to wait too long to know the outcome: A ruling is expected this summer.
— National Review (@NRO) January 29, 2020
(WSJ) Michael Helfand–Discrimination Without Discriminating? The Supreme Court next week will hear another challenge to an anti-Catholic law
In Trinity Lutheran v. Comer (2017), the justices took aim at Missouri’s Blaine amendment, which the state had invoked to withhold funding for a church-run school. By 7-2, the justices deemed Missouri’s denial a First Amendment violation because “Trinity Lutheran was denied a grant simply because of what it is—a church.” But the court focused on the discriminatory impact of the specific case, rather than the discriminatory intent of the Blaine amendment.
Espinoza involves a scholarship program the Montana Legislature created in 2015 to promote school choice. The state offered a $150 tax credit for donations to nonprofits that award scholarships to students attending any private ‘“qualified education provider,” a definition that initially included religious schools. But the law conflicted with Montana’s Blaine amendment, which bars “any direct or indirect” funding to religious schools. The state Department of Revenue redefined “qualified education provider” to exclude religious schools. That exclusion triggered a set of lawsuits arguing that the modified rule violated the First Amendment—a strong argument given Trinity Lutheran.
Then the legal fight took a strange turn. The Montana Supreme Court held that the program could not support institutions providing scholarships to religious schools. But it also found that the Department of Revenue lacked the authority to modify the program to exclude religious schools. Because the law authorized what the state constitution prohibited—funding religious schools—the entire law had to be struck down. That meant no private school received funding.
As a result, the law that discriminated against religious schools is off the books. Thus the most natural application of U.S. Supreme Court precedent—that a state may not exclude a religious institution simply because of “what it is”—does not easily apply. Given this peculiar posture, how might the justices decide the case?
Opinion: Discrimination Without Discriminating?
The Supreme Court next week will hear another challenge to an anti-Catholic law. #1A #Blaine #conlaw
via @MAHelfand @WSJ @howappealing https://t.co/JLyrWlyBl8
— Tom Collins (@azcleanelexexec) January 17, 2020
First consider a pair of puzzles from the crucial period 2014-16 in American politics, when the tempo of liberalism’s sacramental celebrations increased sharply. In both cases, the puzzle is that political incumbents in a liberal regime—executive actors in one case, litigation groups and judicial actors in another—took actions that were flagrantly ill-advised from the standpoint of the ragion di stato, revealing deeper sacramental commitments and impulses.
The first was the Obama administration’s relentless attempt to force the Little Sisters of the Poor to either fund abortifacient contraceptives or, at least, to take action to pass the responsibility elsewhere. Commentators at the time criticized the seemingly inexplicable stupidity of the administration’s approach, which created a highly salient example of repressive regulatory secular liberalism and thus radically antagonized Christian conservatives, who proceeded to vote for Trump in large numbers. It is plausible to think that the voting pattern was partly caused bythe example, although, in the nature of the case, it is extremely difficult to establish such things one way or the other.
But this criticism, while entirely valid from a ragion di stato perspective, does not quite reach the root of the matter, at least if we understand the inner dynamics of sacramental liberalism. The very point of the administration’s conduct, on my view, was not (or not only) to force one smallish order of nuns to provide contraceptives—indeed, the very fact the administration offered a “voluntary” opt-out underscores that the real objective lay elsewhere. Rather, the objective was ceremonial—to force the nuns to acknowledge publicly the liberal state’s just authority, even in matters of religion, the authority to require either provision or the exercise of an opt-out, as the state saw fit. The main point was to stage a public, sacramental celebration of the justice of liberal power and of the overcoming of reactionary opposition.
Another example involves the puzzle of Obergefell—including the administration’s rather chilling representation at oral argument in the Supreme Court that institutions not supportive of same-sex marriage might have to lose their tax exemptions as contrary to “public policy,” as did racist institutions like Bob Jones University. The puzzle is not only why the administration would make such an inflammatory threat, but also why such a judicial decision was necessary at all, when the tide of politics was running in favor of same-sex marriage anyway. Simple nonintervention, by means of any of the standard techniques available to the liberal Justices, would have attained the same policy ends with far less political conflict. As far as instrumental political rationality went, all that was necessary was to do nothing.
But a conspicuous conflict with the settled mores of millennia was, of course, the point. It was right and just to have same-sex marriage not merely embodied in law, but declared a requirement of fundamental justice, coupled with a conspicuous defeat of the forces of reaction.
A truly brilliant lecture on the crushing demands of sacramental liberalism. https://t.co/bEu9Dc6nVn
— C.C. Pecknold (@ccpecknold) July 27, 2019
Those are the first words in a tweet thread from Becket attorney Lori Windham, and she’s right. This week Becket filed a cert petition in Sharonell Fulton v. City of Philadelphia. Fulton is appealing from a Third Circuit Court of Appeals opinion holding that Philadelphia did not violate the Free Exercise Clause of the First Amendment when it took punitive actions against Catholic Social Services because, in the words of the cert petition, “as a Catholic agency, CSS cannot provide written endorsements for same-sex couples which contradict its religious teachings on marriage.” Philadelphia took this action in spite of the fact that “CSS’s beliefs about marriage haven’t prevented anyone from fostering. ” As Becket explains:
Philadelphia has a diverse array of foster agencies, and not a single same-sex couple approached CSS about becoming a foster parent between its opening in 1917 and the start of this case in 2018. Despite this history, after learning through a newspaper article that CSS wouldn’t perform home studies for same-sex couples if asked, the City stopped allowing foster children to be placed with any family endorsed by CSS. This means that even though no same-sex couples had asked to work with the Catholic Church, the foster families that actually chose to work with the Church cannot welcome new children into their homes at a time when Philadelphia has an admittedly “urgent” need for more foster parents.
As is the case with multiple modern religious liberty cases, the issue isn’t whether LGBT individuals are excluded from the relevant market, industry, or program but whether the state may use its power to enforce ideological and religious conformity. Just as a ruling for Jack Phillips in Masterpiece Cakeshop meant that customers could still get their cakes, and Christians could still retain their rights of conscience, a ruling for CSS here would mean that LGBT families could still foster, and Catholics would be able to uphold church teaching.
Moreover, the facts of the case demonstrate that Philadelphia’s intolerance doesn’t just harm the Catholic Church, it harms the very people the foster program is designed to help.
A ruling for Catholic Social Services would mean that LGBT families could still foster, and Catholics would still be able to uphold church teaching. Rule against them, and the court drives CSS from fostering kids: https://t.co/bKF3Vm87fU
— David French (@DavidAFrench) July 26, 2019
If a World War I memorial is shaped like a cross, does that make it a religious symbol? Even faith groups don’t agree on the answer to that question, which is before the Supreme Court this week.
The American Legion, et al. v. American Humanist Associationcenters on a 40-foot-tall, cross-shaped monument in Bladensburg, Maryland, which is maintained with government funds. By the end of June, justices must decide if this arrangement violates the Constitution’s establishment clause, which bans the government from privileging one faith group over others, and, if it does, whether the cross should be altered or removed.
Briefs filed in the case, which will be heard on Wednesday, reveal conflicting claims about the monument within and between faith groups and religious freedom organizations.
Supporters of the so-called “Peace Cross” say its secular purpose outweighs its association with Christianity, while opponents say it’s undeniably and unlawfully religious.
“Maintaining a nearly century-old war memorial at a busy intersection is hardly an official declaration in law that Christianity is the government’s preferred religion,” argues a brief in support of the Bladensburg cross signed by The Church of Jesus Christ of Latter-day Saints, the National Association of Evangelicals, the Lutheran Church-Missouri Synod and four other religious organizations.
On the other hand, faith groups opposing the cross filed briefs stating that even the appearance of religious favoritism is a problem.
— Kendall Harmon (@KendallHarmon6) February 26, 2019