At One Time…

“Religious Freedom” freedom to worship now it is being morphed into freedom to discriminate under guise of religion. There was a test that the Supreme Court did to see is a law was biased against religion, if a law was religiously neutral then it didn’t violate the First Amendment but that is being changed by today’s courts.

Amy Coney Barrett sizes up 30-year-old precedent balancing religious freedom with rule of law
The Conversation
By Mark Satta
November 13, 2020


Justice Amy Coney Barrett’s first week as an active Supreme Court justice began on Nov. 2 and almost immediately included a case that could test her credentials as a religious conservative.

On the surface, Fulton v. City of Philadelphia, which was argued in front of the court on Nov. 4, concerns whether the city can require organizations it partners with to accept same-sex couples as foster parents.

But underneath are questions about how Barrett and her fellow justices will deal with a decades-old Supreme Court ruling that could have wider implications for religious liberty cases.

Foster care
The case in front of the justices concerns how Philadelphia partners with private organizations – both religious and secular – to find homes for children in foster care. In 2018, Philadelphia learned that two organizations, Catholic Social Services and Bethany Christian Services, had religiously motivated policies against placing children with same-sex couples in violation of Philadelphia’s Fair Practices Ordinance.

Philadelphia stopped sending foster care placement requests to these organizations as a result, prompting Catholic Social Services to sue.

Lawyers for Catholic Social Services argue that Philadelphia’s response violates First Amendment protections of religion and speech. Two lower federal courts ruled in Philadelphia’s favor. It is now up to the Supreme Court to decide whether the lower courts got it right.

Based on the questions asked during oral arguments, Fulton could well be decided on technical grounds over whether Catholic Social Services is a contractor or licensee of Philadelphia. But from my perspective as an attorney and First Amendment scholar, Barrett’s questions during oral arguments are of significant interest in considering the future of First Amendment law as it pertains to religious freedom.

Specifically, they suggest that Barrett is examining a key piece of First Amendment precedent: Employment Division v. Smith.

The case that is often cited was Lemon v. Kurtzman (1971) where according to Middle Tennessee State University…

That three-prong test articulated by the Supreme Court in Lemon v. Kurtzman (1971) is used by the high court and other federal courts to determine whether government has violated the First Amendment principle of church-state separation. Even though the word neutrality does not appear in the Lemon test, many scholars and judges have interpreted the test’s commands to mean that government must be neutral in matters of religion — that is, laws and government actions should have a secular purpose, should neither advance nor inhibit religion, and should not foster an excessive entanglement with religion. Over the years, various justices have tinkered with and criticized the Lemon test, but the Court has never overruled it.

The Lemon Test named after the Lemon v. Kurtzman case says,

• First the court must first determine whether the law or government action in question has a bona fide secular purpose.
• Second, a court would ask whether the state action has the primary effect of advancing or inhibiting religion.
• Third the court must consider whether the action excessively entangles religion and government.

The other case cited was the Employment Division v. Smith, in that case “Smith and Galen Black were fired from their jobs as private drug rehabilitation counselors for ingesting peyote as part of a sacrament of the Native American Church” this is somewhat similar to arrest someone under age for taking communion because they had wine.

The Conversation article goes to say,

In writing the court’s opinion in favor of the state, Justice Antonin Scalia recognized that without some kind of limit on the Constitution’s religious free exercise clause, laws could become meaningless.

He held that the Constitution does not allow religious adherents to violate a “neutral law of general applicability,” by which he meant a law that applies to everyone and does not favor or disfavor people based on their religion or lack thereof. Because Oregon’s law was neutral and generally applicable, the state’s refusal to exempt religious peyote use from its drug laws was deemed constitutional.

What Justice Barrett is trying to do is overturn the Lemon test and as Justice Scalia warned about is creating two separate case laws where laws could become meaningless.

The bottom line.

Right now non-discrimination laws work because the laws are religiously neutral, they don’t single out any religion but only apply to houses of worship and their clergy but if the Lemon test and religiously neutral test gets thrown out then anyone can claim that they are exempt from the law.

Why is this important to you? [Rant: When I post topic on the law, they are the least read posts. It seems like many in the trans community are just not interested, their eyes glaze over and roll in their head.]

If you are a member of the trans community and if Justice Barrett prevails… all the non-discrimination laws are null and void. Think about that for a second. Do you want to be forced back into the closet? Do you want to be rushed in to an emergency room after a car accident and be refused treatment because it is a religious hospital? Do you want to walk into a restaurant and be refused service?

Do you know the biggest landlord in Connecticut is the Catholic Church. If Justice Barrett prevails they could refuse to rent to us or unmarried couples or anything else that they see as a sin.

This is not far fetched idea… this is happening NOW. I know someone who slipped and fell on some ice and the staff refused to treat her, they told to go home and take two aspirin. She fractured her spine and hip in the fall. It was a hospital here in Connecticut not down south someplace.