Court holds that city’s refusal to make referrals to faith-based agency violates Constitution

Court holds that city’s refusal to make referrals to faith-based agency violates Constitution


This article was updated on June 17 at 6:52 p.m.

In a clash between religious freedom and public policies that protect LGBTQ people, the Supreme Court ruled Thursday that Philadelphia violated the First Amendment’s free exercise clause when the city stopped working with a Catholic organization that refused to certify same-sex couples as potential foster parents.

The ruling was a victory for Catholic Social Services, an organization associated with the Archdiocese of Philadelphia, and two foster parents, who alleged that Philadelphia’s refusal to make foster-care referrals to CSS discriminated against the group because of its religious beliefs about traditional marriage. But the decision fell short of the broad endorsement of religious freedom that the challengers had sought. While the justices unanimously agreed with CSS and the foster parents that the city’s action was unconstitutional, a six-justice majority left intact the Supreme Court’s 1990 decision in Employment Division v. Smith, which held that government actions usually do not violate the free exercise clause as long as they are neutral and apply to everyone.

Chief Justice John Roberts wrote for the court, in an opinion that was joined by Justices Stephen Breyer, Sonia Sotomayor, Elena Kagan, Brett Kavanaugh and Amy Coney Barrett. Barrett wrote a concurring opinion that Kavanaugh joined in full and Breyer joined except for the first paragraph. Justice Samuel Alito wrote an opinion concurring in the judgment – that is, agreeing with the result that the court reached, if not necessarily its reasoning. His opinion was joined by Justices Clarence Thomas and Neil Gorsuch. Gorsuch wrote his own opinion concurring in the judgment, which Thomas and Alito joined.

The case began in 2018, after Philadelphia’s city council passed a resolution that condemned “discrimination that occurs under the guise of religious freedom” and instructed the city’s Department of Human Services, which contracts with private organizations to place children in foster homes, to change its contracting practices. In the days that followed the resolution, the city stopped all referrals to CSS.

CSS and two foster parents, Sharonell Fulton and Toni Lynn Simms-Busch, went to federal court and sought a court order requiring the city to resume referrals to CSS. They contended that the city’s decision to cut off referrals violated several different parts of the First Amendment: the free exercise clause, which protects religious belief and expression; the establishment clause, which (among other things) prohibits the government from favoring non-religion over religion; and the free speech clause. A federal district court turned them down, ruling that the city’s policy passed muster under Smith. The U.S. Court of Appeals for the 3rd Circuit affirmed, finding no sign that the city had discriminated against CSS because of its religious beliefs.

The Supreme Court reversed. In his opinion for the court, Roberts began by observing that it was “plain” that the city’s actions had burdened CSS’s exercise of its religion, by requiring it to choose between “curtailing its mission or approving relationships inconsistent with its beliefs.” The question before the court, Roberts continued, was whether the Constitution allows the city to impose that burden.

And although CSS had asked the court to overrule Smith, Roberts noted, there was no need for the court to consider that question, because the city’s policy is not “generally applicable.” The provision in the city’s standard foster-care contract that CSS is accused of violating, which bars rejection of prospective foster-care parents based on their sexual orientation, includes a system of individual exemptions that the commissioner of the city’s Department of Human Services can grant in her “sole discretion,” Roberts emphasized.

It doesn’t matter, Roberts added, that the commissioner has never actually granted an exception. The problem, Roberts made clear, is the existence of a “formal mechanism for granting exceptions” in the first place, because such a scheme “‘invite[s]’ the government to decide which reasons for not complying with the policy are worthy of solicitude.”

Roberts also briefly considered, but rejected, the city’s argument that CSS’s refusal to certify same-sex couples violates a city ordinance prohibiting discrimination by public accommodations. The ordinance does not apply to CSS, Roberts reasoned, because foster-care agencies “do not act as public accommodations in performing certifications.”

Because the city’s contracting policy is not “generally applicable” under Smith, the policy is subject to the most stringent constitutional test, known as strict scrutiny, Roberts explained. He concluded that it cannot pass that test. The city, Roberts wrote, has not shown that its goals of maximizing the number of foster families and minimizing the city’s legal liability will be jeopardized by giving CSS an exemption from the non-discrimination policy. To the contrary, Roberts suggested, “including CSS in the program seems likely to increase, not reduce, the number of available foster parents.” Roberts acknowledged the city’s “weighty” interest in the “equal treatment of prospective foster parents and children,” but he concluded that it was not sufficient to “justify denying CSS an exception for its religious exercise,” especially when the city has a system of exemptions.

CSS, Roberts concluded, “seeks only an accommodation that will allow it to continue serving the children of Philadelphia in a manner consistent with its religious beliefs.” CSS does not, Roberts emphasized, “seek to impose those beliefs on anyone else.”

Barrett, who joined the Roberts majority opinion in full, filed a short concurring opinion that was joined by Kavanaugh and (except for the first paragraph) Breyer. CSS and its supporters, Barrett acknowledged, have “made serious arguments that Smith ought to be overruled.” But in this case, she continued, “the same standard applies regardless whether Smith stays in place.” Therefore, she concluded, there was no reason for the court to “decide in this case whether Smith should be overruled, much less what should replace it.”

In his 77-page concurring opinion, Alito criticized the narrowness of the court’s ruling, writing that Thursday’s decision “might as well be written on the dissolving paper sold in magic shops.” Philadelphia, Alito suggested, could easily sidestep the decision simply by getting rid of the exemption system, and the ruling “provides no guidance” for similar disputes elsewhere in the country.

Alito then turned to the court’s decision in Smith, which he characterized as a “severe holding” that is “ripe for reexamination.” The ordinary meaning of the Constitution’s free exercise clause, Alito contended, is that it bars any laws that “forbid” or “hinder” “unrestrained religious practices or worship.” By contrast, Alito observed, Smith interpreted the free exercise clause as an anti-discrimination provision: It bars federal and state governments from restricting “conduct that constitutes a religious practice for some people unless it imposes the same restriction on everyone else who engages in the same conduct.” But if equal treatment was the goal of the free exercise clause, Alito suggested, the drafters of the First Amendment would have used more precise language to make that clear.

Alito acknowledged the doctrine of stare decisis, the principle that the court should rarely overrule its own precedent. But he nevertheless laid out the case to overrule Smith.  Several of the factors that the court often considers when deciding whether to overrule its past decisions “weigh strongly against Smith,” Alito contended. For example, the decision is a “methodological outlier” that “looked for precedential support in strange places,” he suggested,” and it is “tough to harmonize” with other precedents. Moreover, he added, courts have experienced a variety of “serious problems” in applying Smith. On the other hand, Alito argued, there is virtually nothing to recommend keeping Smith in place.

Alito closed by complaining that, after all of the time and attention devoted to the case, the Supreme Court had issued only “a wisp of a decision that leaves religious liberty in a confused and vulnerable state. Those who count on this Court to stand up for the First Amendment have every right to be disappointed,” Alito concluded. He added, “as am I.” 

In his opinion concurring in the judgment, Gorsuch noted that if the court had overruled Smith, as Alito had suggested, “this case would end today.” Instead, Gorsuch objected, “the majority’s course guarantees that this litigation is only getting started.” The city will resist working with CSS as long as CSS refuses to certify same-sex couples, Gorsuch posited, and Thursday’s decision will allow the city to try to avoid doing so – for example, by rewriting its contract. And the effects of the court’s decision will not be limited to CSS, Gorsuch stressed: “Individuals and groups across the country will pay the price — in dollars, in time, and in continuing uncertainty about their religious liberties.”

This article was originally published at Howe on the Court.

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Justices scuttle lawsuit against Nestlé, Cargill for allegedly aiding child slavery abroad

Justices scuttle lawsuit against Nestlé, Cargill for allegedly aiding child slavery abroad


This article was updated on June 17 at 7:15 p.m.

The Supreme Court on Thursday threw out a lawsuit alleging that two U.S.-based companies, Nestle and Cargill, facilitated human-rights abuses on cocoa plantations in the Ivory Coast. By a vote of 8-1, the justices ruled that the lawsuit cannot go forward because it is based on conduct that occurred overseas. Although the decision was obviously a victory for the two companies, it was not the sweeping one that the business community had sought. The justices left open for another day the question of whether the federal law at the heart of the case allows lawsuits against U.S. corporations at all.

Thursday’s decision came in a lawsuit filed by six citizens of Mali, who claimed that as children they were enslaved on cocoa plantations in Ivory Coast. The conditions there, the plaintiffs contended, were horrific: They worked for long hours without pay and with very little food, and if they didn’t work quickly enough, they were beaten with whips and tree branches.

The plaintiffs filed a lawsuit in federal court in California against Nestle and Cargill, alleging that the companies had aided and abetted human-rights abuses because they had purchased cocoa beans from the plantations even though the companies knew that the plantations used child slavery. The companies also provided the cocoa farmers with support, the plaintiffs added, such as personal spending money and farming supplies such as fertilizers and tools.

The plaintiffs relied on the Alien Tort Statute, an 18th-century law that permits foreigners to bring lawsuits in U.S. courts for serious violations of international law. The trial court dismissed the lawsuit, reasoning that the activities at the heart of the plaintiffs’ complaint were normal for multinational corporations, but the U.S. Court of Appeals for the 9th Circuit reinstated it. The lawsuit could go forward, the 9th Circuit reasoned, because Nestle and Cargill made “major operational decisions” in the United States, and the “financing decisions … originated” there as well. The companies appealed to the Supreme Court, which agreed to weigh in last year.

In a brief opinion by Justice Clarence Thomas that was joined in relevant part by Chief Justice John Roberts and by Justices Stephen Breyer, Sonia Sotomayor, Elena Kagan, Neil Gorsuch, Brett Kavanaugh and Amy Coney Barrett, the court agreed with the companies and the federal government, which filed a “friend of the court” brief supporting the companies, that the plaintiffs were asking U.S. courts to apply the Alien Tort Statute outside the United States, where U.S. laws normally do not apply. Because the ATS does not apply outside the United States, Thomas explained, the plaintiffs’ lawsuit can go forward only if conduct that is relevant to the focus of the ATS occurred in the United States. Although the two sides do not agree on what that conduct is, Thomas continued, under any interpretation the plaintiffs would still be seeking to have the ATS apply extraterritorially. “Nearly all of the conduct that they say aided and abetted forced labor — providing training, fertilizer, tools, and cash to overseas farms — occurred,” Thomas emphasized, in Ivory Coast. General allegations about corporate decision-making in the United States cannot, without more, establish a domestic application of the statute.

In a section of his opinion joined only by Gorsuch and Kavanaugh, Thomas wrote that the plaintiffs’ lawsuit could not continue for yet another reason, wholly unrelated to extraterritoriality: The plaintiffs did not have a cause of action to sue in the first place. The ATS does not itself create a right to sue, Thomas observed, and the court’s recent rulings on the ATS have made clear that federal courts should not recognize private rights of action beyond three historical and serious violations of international law – piracy, crimes against ambassadors, and violations of the right of safe passage – because of the foreign-policy problems that could arise from doing so. “Whether and to what extent defendants should be liable under the ATS for” wrongdoing beyond those three sets of offenses is for Congress to decide.

In a concurring opinion joined in different parts by Alito and Kavanaugh, Gorsuch noted that the court had agreed to decide (but ultimately did not) whether corporations can be sued under the Alien Tort Statute at all. “That is a good thing,” Gorsuch reasoned. “The notion that corporations are immune from suit under the ATS cannot be reconciled with the statutory text and original understanding” of the law. However, Gorsuch continued, the “real problem with this lawsuit and others like it” is that the ATS “nowhere deputizes the Judiciary to create new causes of action.”

Sotomayor criticized what she described as Thomas’ effort to cabin the scope of the ATS, to provide a cause of action only for the three violations of international law that were recognized in 1789. Such an interpretation, Sotomayor argued, is contrary to both the Supreme Court’s 2004 ruling in Sosa v. Alvarez-Machain and the text and history of the ATS. It is also, she suggested, a “gross overreaction to a manageable (and largely hypothetical) problem.”

Justice Samuel Alito dissented. Although, he acknowledged, Thomas and Gorsuch “make strong arguments that federal courts should never recognize new claims under the ATS,” he concluded that the court should not address that question here because the companies did not raise it. Instead, he would have rejected the companies’ contention that they cannot be sued and would have sent the case back to the lower courts for further proceedings.

This article was originally published at Howe on the Court.

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I’m writing my memoir – does that make me just a character in a book? | Hadley Freeman

It’s the age of personal experience. But once you share, you no longer really own your story

“I thought that review was judgmental and talked about me as if I were an idiot and not a journalist and not somebody who has written bestselling books and award-winning articles,” said the (for the record) bestselling and award-winning writer Nancy Jo Sales on the Femsplainers Podcast, in what was definitely the most revealing interview I encountered last week. Sales, probably best known for her work in Vanity Fair, has written a book, Nothing Personal, about online dating culture, following on from her documentary, Swiped, and 2015 Vanity Fair feature on the subject. In all of her takes on this issue, Sales concludes that these apps are bad for women, and she bases this at least partly on her own experience: “I realised this is really not fun in the way sex is supposed to be. A lot of it is bad for women. The guy doesn’t know you or care about you,” she said in the interview.

I fully own up to not having read Sales’s book yet. But, judging from what she has said, I gather it focuses on her online dating experience, and she hasn’t particularly liked some critics’ take on that. The review she described as “judgmental” was in the New York Times, and her Femsplainers interview didn’t go much better. The interviewer, Danielle Crittenden, said maybe the reason Sales, 56, found the apps so dismaying was that, despite saying she was looking for “companionship”, she said in her dating profile that she was looking for men in their 20s, and she would then invite them over for casual sex.

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