Two decisions by the US Supreme Court in the last week of the Court’s 2020-2021 term resulted in confusion concerning the status of religious liberty. In Fulton v. City of Philadelphia, the Court ruled 9-0 that the City of Philadelphia could not bar Catholic Social Services from placing foster children because they refused to place foster children with same sex couples. While those in support of religious liberty celebrate the result, and the fact that all 9 Justices recognize the Establishment Clause is in the Constitution, the reasoning in the opinion with the twists and turns about the wording of the contract and the City Ordinance limit the applicability to the broader issue of religious liberty. The language used infers that if the City changes the wording of the contract and the Ordinance, that the City might then be able to defeat the Catholic Charity’s religious liberty claim and prevent further placement of foster children through that agency. In fact, the Concurring (or dissenting?) opinion of Justice Alito said about the majority opinion that it “might as well be written on the dissolving paper sold in magic shops.”
The second decision was the refusal to hear the case of Arlene’s Flowers v. Washington State where a florist refused to provide flowers for a same sex wedding based on religious convictions. By refusing to hear that case, the Supreme Court allowed lower court decisions to stand that included a fine of over $1,000 plus thousands of dollars in legal fees.
These and other apparently inconsistent, and twisted decisions make it virtually impossible for legal experts and judges to know how and when to say religious liberties will be protected. It would seem to most that the plain reading of the US Constitution that protects religious liberty should prevail over statutory discrimination provisions or even other court imposed discrimination protections. Right now the Court appears to be unable to see the bigger picture of the forest because of being caught up in the trees. The Court will have other opportunities for clarity in the next term of the Court and we can only hope that clarity will prevail in protecting our sacred constitutional religious liberties.