Carole Levine June 25, 2021
People are confused and many are rightfully concerned. Most of us had hoped for a Supreme Court ruling in Fulton v. The City of Philadelphia that would uphold the city of Philadelphia’s barring of Catholic Charities’ participation in city-funded adoption services due to its faith-based decision to turn away same-sex and unmarried couples. It was not to be. The Supreme Court brought forward a narrow, but unanimous ruling in favor of Catholic Charities. This was not what was expected, even from this court. But perhaps the handwriting was on the wall with some of the Covid-19 decisions that happened quietly on the less-known Shadow Docket of the Supreme Court and that process elevated religious freedom to a most favorable status position in the panoply of issues that the Court considers. Understanding the role of the Shadow Docket will be helpful in unpacking this case.
The mysterious Shadow Docket of the Supreme Court has played a larger and larger role in some key decisions during this last court session. The term “Shadow Docket” was first coined in 2015 by law professor William Baude to refer to the thousands of decisions that the Supreme Courts hands down each year that do not go through the regular “Merits Docket” that most of us are familiar with. The Merits Docket includes full briefings, oral arguments, and lengthy signed opinions. Instead, the Shadow Docket cases lack any public deliberation or transparency, and opinions are mostly one or two sentence summaries handed down in the middle of the night and are unsigned. They most often involve death penalty cases, but recently have involved a number of Covid issues with religious liberty at the core. It should also be noted that until the Trump administration, the use of the Shadow Docket was somewhat limited to the area of seeking emergency relief from the Court and thus being able to avoid a formal appeals process. One has to prove that you will suffer “irreputable harm” if your request is not granted. Thus, between 2001 and 2017, only eight such petitions were filed by the Department of Justice. But four years of the Trump administration saw 41 such applications, involving the border wall, Covid-19 safety regulations, and federal executions.
Why is this important? Because a number of these Covid-19 Shadow Docket cases involved disputes over religious freedom and practice during pandemic restrictions. The case most often pointed to is Tandon v. Newson, an unsigned 5-4 decision (we do not know who the 5 to 4 were because this was a Shadow Docket decision) in April 2021 that struck down restrictions on group religious gatherings in private homes. The rational of the majority opinion was that strict scrutiny* was required “whenever they treat any comparable secular activity more favorably than religious exercise.” The comparable secular activity was shopping in a bicycle store or going to a hair salon where the numbers were not limited. A number of these Shadow Docket rulings on religious freedom opened the door for religious institutions to ignore Covid-19 regulations and laid some groundwork for the ruling in Fulton v. The City of Philadelphia.
*One more legal term – Strict Scrutiny – which is the most rigorous form of judicial review. Once a court determines that strict scrutiny must be applied, it is presumed that the law or policy is unconstitutional. The government then needs to prove that the challenged law is constitutional and show that it is necessary to achieve a compelling state interest. If this is proved, the state must also demonstrate that the legislation is narrowly tailored to achieve the intended result. Achieving strict scrutiny is not a simple thing.
In Fulton, we have a unanimous ruling in favor of Catholic Charities being able, on religious grounds, to not serve same-sex couples seeking to adopt. Why? Because of sloppy wording in the City of Philadelphia’s nondiscrimination statement. Because that statement allows the City of Philadelphia to make exceptions. And if they can make exceptions for secular reasons, then should they not also be able to make them for religious reasons? Even though the city has never granted an exception, the Court held that they could and therefore a religious exception was, indeed, a logical and appropriate exception as long as there were other agencies that could serve same-sex couples. Thus, we have a unanimous decision that should be narrowly applied to this case only. But there’s the rub. It most likely will not be narrow. I may have much broader implications.
The concern that this case has generated in the LGBTQ community is that this is just a first step. They are not wrong to be worried. The case conjures up images of the Masterpiece Cake case, where the Court also found for the baker who refused to make a cake for a gay couple’s wedding. Again, the narrow ruling was based on the Court’s finding that the Colorado Civil Rights Commission was motivated by “hostility” to the baker’s religious views when it ordered him to make a cake for a same-sex wedding, and the Court reversed the commission’s decision. A victory? Perhaps, but the same baker is still refusing to bake cakes for gay couples, and should he find himself before this Court the outcome might be different, based on their views of the status of religious liberty in the rank order of freedoms in this nation. As sited in Yahoo!News, the Court has in recent years increasingly protected religious groups in government programs, in commerce, in public displays and in public school programs. More and more, since Obergefell v. Hodges legalized same-sex marriage in 2015, Supreme Court cases that address LGBTQ rights have not been brought by an LGBTQ plaintiff. They have been brought, and won, by religious groups.
What is protecting the LGBTQ community and others from discrimination without any checks or balances is the Supreme Court’s 1990 decision in Employment Division v. Smith which upheld Oregon’s ban on the use of the hallucinogenic drug peyote, even in Native American religious rituals. Because the ban did not specifically target religion, the Court held that it did not violate the free exercise clause of the Constitution. Many a conservative hoped that the Court would overturn Smith with their decision in Fulton. They did not, but it was clear in the opinions of a number of conservative justices that overturning Smith was on their agenda. Given this, another case might do the trick and with that, the doors will be open wide for religious discrimination to flourish…and not just against the LGBTQ community. It would only be a short jump to a claim of religious belief in separation of people of color from white people, or from people with differing faith beliefs, or simply separating people by age. Discrimination on the basis of religious faith may extend its reach into many area and arenas. And any law that prohibits discrimination can be challenged by those who want to discriminate with a claim that it violates their religious beliefs.
Perhaps the concern this case raises was best put by Erwin Chemerinsky, the dean of Berkeley Law School in an interview with Dahlia Lithwick when he said: “If somebody can discriminate against gays and lesbians on account of religion, why can’t they discriminate against Blacks on account of religion? Why can’t they discriminate against women on account of religion? Once the court has opened this door, they really then said, “We favor religious liberty over stopping discrimination against gays, lesbians, or any other group.”” We should all be concerned – very concerned – about this decision.