Strict Scrutiny - Amuse Bouche

Episode Date: June 18, 2021

Kate and Melissa recap two opinions, California v. Texas (the ACA case) and Fulton v. City of Philadelphia (Masterpiece Cakeshop redux). For the latter, Katherine Franke joins with historical context and insights. Follow us on Instagram, Twitter, Threads, and Bluesky

In 2015, Vladimir Putin's number one public enemy, Boris Nemtsov, was shot and killed in front of the Kremlin. He was a relentless critic of Putin, corruption, and war in Ukraine. Then he was assassinated. I'm Ben Rhodes, writer and co-host of Pod Save the World, and I'm teaming up with Boris's daughter, journalist Zhanna Nemsova, to tell his story in Crooked Media's new podcast, Another Russia.

Together, we uncover what happened to one family and an entire country and ask whether another Russia is possible. New episodes every Monday. Listen and subscribe wherever you get your podcasts. Mr. Chief Justice, I please report. episodes every Monday. Listen and subscribe wherever you get your podcasts. not elegantly, but with unmistakable clarity. She said, I ask no favor for my sex. All I ask of our brethren is that they take their feet off our necks. Welcome back to Strict Scrutiny, your podcast about the Supreme Court and the legal culture that surrounds it. We're your hosts. I'm Melissa Murray. And I'm Kate Shaw. And Leah Lippman is somewhere deep in the woods, but fear not, she will be back in time for our next episode. But we are coming to you

live today with a short emergency episode because it was Turn Up Thursday at the court. And we got two enormous opinions, the opinions in Texas versus California and Fulton versus City of Philadelphia. So in addition to being much anticipated opinions, both of these opinions featured far more unanimity than I think we and many people expected. Both display Sam Alito reaching new heights of outrage. At this point, I have to say we are starting to wonder whether he might be the one whose imminent retirement we should all be looking out for, but we're getting ahead of ourselves. So let's start off with Texas versus California. So this is the third of the full frontal attacks on the Affordable Care Act. We are not even counting in that figure the repeated challenges to the law's contraceptive coverage requirement. This latest challenge, just to remind folks, originates in 2017 when the Republicans in

Congress tried to repeal the Affordable Care Act. Senator John McCain, remember, famously gave the repeal thumbs down, saving the ACA on the Senate floor. But Congress did go on to amend the ACA, which was actually part of the Tax Cuts and Jobs Act passed later in 2017. And it amended the ACA by lowering the penalty for not having health insurance to zero dollars. So a little more background, maybe in order. Recall that under the original Affordable Care Act, the failure to comply with the individual mandate resulted in a financial penalty that was scaled to income. In NFIB v. Sebelius, which the court decided in 2012, the Supreme Court upheld the individual mandate as a permissible exercise of Congress's power to tax. Now, as we mentioned, Congress later lowered the penalty to zero dollars. And in this

most recent challenge, plaintiffs argued that if the penalty was zero dollars, it could no longer be sustained as a tax, right? So the argument continued, if it wasn't a tax, the individual mandate was therefore unconstitutional. And if the individual mandate was unconstitutional, the entire Affordable Care Act must fall. So maybe let's phrase that more concretely. If the mandate is now unconstitutional, the entire law, with its protection for pre-existing conditions, kids' ability to stay on their parents' health insurance until the age of 26, expanded Medicaid in many states, the contraceptive mandate, and many, many other provisions must also fall. That was the challenger's argument. All right. So who were the challengers in this case? It was a group

of states with Texas in the lead with several individual plaintiffs. And they were joined by the United States, including Jeff Wall, Trump's acting solicitor general, who joined these plaintiffs in asking the court to strike down the law in its entirety. And oral arguments, which were heard in November shortly after the election, was largely consumed with the question of whether these plaintiffs had standing to bring the suit in federal court. And in fact, that actually turned out to be determinative in this case. The court, in a 7-2 opinion authored by strict scrutiny favorite Stephen G. Breyer, held that these plaintiffs clearly lacked standing. And so the ACA remains intact, but the court didn't even touch the merits of this claim. And so the ACA remains in its entirety.

So let's briefly recap constitutional standing. So put on your con law hats. Constitutional standing doctrine has three principal elements, injury, causation, and redressability. Claimants argued that the law told them to buy health insurance, and so they did. And they spent money buying health insurance that they did not want, and that this was a kind of traditional pocketbook injury. But the court said, no dice. Even if we accept that this is a kind of pocketbook injury, it's not traceable to any government action. And as the court explained, their problem lies in the fact that the statutory provision,

while it tells them to obtain that coverage, has no means of enforcement. With the penalty zeroed out, the IRS can no longer seek a penalty from those who fail to comply. There is no possible government action that is causally connected to the plaintiff's injury, the cost of purchasing health insurance. Or to put the matter conversely, that injury is not fairly traceable to any allegedly unlawful conduct of which the plaintiffs complain. They have not pointed to any way in which the defendants, the commissioner of the IRS and the secretary of health and human services, will act to enforce the provision. They have not shown how any other federal employees could do so either. The opinion basically says that the plaintiffs cannot satisfy the redressability requirement for standing because there's no

one to enjoin because no one has the power to enforce the law. And a declaration of unconstitutionality would essentially be an impermissible advisory opinion. In its standing discussion, the court also has this amazingly dismissive paragraph about the argument that Jeff Wall made on behalf of the United States. This is the so-called standing by inseverability theory. Basically, that these plaintiffs were injured by some portions of the Affordable Care Act, specifically certain interrelated insurance reform provisions of the ACA that restrict their insurance options and raise their costs of obtaining coverage.

And so, according to Solicitor General Wall, they could basically bootstrap that injury into an Article III injury that allowed them to challenge the mandate. And I thought Justice Kagan had a great exchange with Wall on this. Okay, I mean, the United States is usually pretty stingy about standing law. So it did surprise me in much the way that it surprised the Chief Justice that you're coming in here with a theory, which to my mind threatens to kind of explode standing doctrine. I mean, a lot of legislation now is in these huge packages. I mean, even more than the ACA, that involve a thousand different subjects, omnibus legislation, where it's just everybody pours everything in that they can think of. And it would seem a big deal to say that if you can point to injury with respect to one provision, and you can concoct some kind of inseverability argument, then it allows you to challenge anything else in the statute. Isn't

that something that the United States should be very worried about? And isn't it something that really cuts against all of our doctrine? So I think the whole court seemed as skeptical as Justice Kagan did in oral arguments about this theory offered by the United States, although Breyer actually doesn't reject the theory on the merits, rather just says, look, these plaintiffs didn't make that argument below. No one raised it at the cert stage. And so we're not even going to consider that argument here. The court also took on the question of whether the state plaintiffs had standing. And remember, Texas was the principal state plaintiff here. And I know we're not supposed to mess with Texas, but the court made pretty short work of this argument and in doing so, pretty much messed

with Texas. The states had argued that they were injured because the existence of the mandate caused Texans to enroll in other health insurance programs like Medicaid and CHIP and state employee programs and that the states had to pay costs associated with those enrollments. The court says that as with the individual plaintiffs, it's not clear how any of that is traceable to government action to enforce the mandate, and also that there are all kinds of good reasons having nothing to do with the mandate for which people might, I don't know, enroll in health insurance programs for which they are eligible. So there's no reason to think that this no penalty mandate is what is driving them to enroll in these programs. And so the court that went further

to say that it is harder to establish standing when the actions of third parties are so central to the causal chain you are alleging. And here it's the third party's decision to enroll in programs like Medicaid. Although the court was very careful to say that the involvement of actions by third parties does not necessarily defeat standing. And that's obviously a really important caveat because it would have huge implications for all kinds of litigation in all kinds of areas of law. But regardless, the states continue to make a version of the standing through inseverability argument by challenging various administrative requirements, some of which they said impose costs on them. But the court, again, made short work of this, saying that those expenses and requirements are not a result of the mandate. So per our boy Steve, this was a breezy 16 pages

in, out, and over, and really never addressed any of the merits of this particular claim. I feel like we need to issue a thank you to Chief Justice Roberts here, which is not something that we typically do on this podcast, but he didn't have to give the opinion to Justice Breyer. You know, Roberts wrote the last two opinions, turning away these big existential challenges to Obamacare, NFIB versus Sebelius, which we mentioned, King versus Burwell in 2015. I kind of assumed he would keep this opinion for himself. But no, you don't think so?

Well, because it was heard in the same sitting as Fulton. Once he was going to take Fulton. That's definitely right. But he and so maybe he and only he could have cobbled together the coalition in Fulton. But I still thought, you know, it's not unheard of to keep two opinions from a single sitting. And, you know, maybe he would have, you know, he preferred actually to dodge responsibility for yet another swooping in to save Obamacare move, although this one, you know, was 7-2, right? So there's been this kind of like incremental increase in the majority in each opinion that upholds Obamacare, 5-4 in NFIB, 6-3 in King v. Burwell,

7-2 today in Texas v. California. Can we say a little bit about this? So maybe the Chief Justice just didn't want that smoke, right? So he handed this off to Steve Breyer, who wrote a very efficient 16-page opinion. But it is worth noting that in the middle of a global public health crisis, there are still two people on the court, Justices Alito and Gorsuch, who would strike down the Affordable Care Act and strip millions of Americans of health care right at a time when health seems to be top of mind. Absolutely. Yeah.

So we should talk about the Alito opinion. Maybe briefly, let's mention the Thomas concurrence first. This is a good point. Before we get to Alito, let's turn to Justice Thomas, who surprisingly concurred with the majority here. You know, he did file a separate concurrence to say that he continues to be mad and perplexed about NFIB versus Sebelius and King versus Burwell. So he's still with Alito on that. But he has a different take on the standing question. And I think it's worth noting here that he often has some really important takes on standing. The whole question

of third party standing in abortion litigation, for example, derived from Justice Thomas's dissent in Whole Women's Health versus Hellerstein was a big part of the action in the litigation in June Medical Services versus Russo, ultimately not determinative there. But I think here, it's not surprising that he would join the majority on this standing question because it seems to have exercised him over time. And he noted, the plaintiffs failed to demonstrate that the harm they suffered is traceable to unlawful conduct. Although this court has erred twice before in cases involving the Affordable Care Act, it does not air today. I mean, these guys really hold a grudge, you know?

Legal issues in this case are totally unrelated to the legal issues in both of the previous two Affordable Care Act cases. And yet, Alito spends 35 pages telling us he's still mad about the prior cases. And Thomas specifically wants us to know, like, he is mad too. But as you said, Melissa, right on the facts of this case, he just doesn't think the plaintiffs have standing. All right. So it should be turned to the Alito dissent really quickly. We are going to get into this next week too when Leah comes back because we can't do this justice without Leah who has thoughts.

But let's just start off. We're going to give you an Alito teaser. A little teaser. An amuse-bouche. An Alito amuse-bouche. The entree will be like Monday or Tuesday probably. And it will be steaming hot. It will.

Okay. This was 35 pages. With a 16-page majority. It's crazy. I know. Twice as long as the majority opinion. So that's really something. And it begins with what I think might reasonably be called an overwrought narrative in which the forces of righteousness keep bringing the court these unassailable arguments that should lead to the Affordable Care Act's demise. But then the court again and again and again improbably rescues the errant act. He doesn't mention the Chief Justice by name here, but it's clearly who he's talking about. So at one point he says, in a stunning turn of events, the threat to the ACA was diffused. Once again, some feared that the act was in mortal danger, but the court came to the rescue. So this is some really weird Chief Justice Roberts fanfic in the making. And all I

can say is that I hope Tom Holland will play the Chief Justice in the movie version of this descent. Isn't that guy really young? Isn't he way too young to play John Roberts? I think he just he's so good. And did you see when he did that Rihanna lip sync challenge umbrella? Like I'm just I have some big Tom Holland energy and I'd love to see what he brings to it. It's a casting choice. Okay. Do you have a better choice? No, I don't. Ben Affleck? Obviously not.

He is front of mind, but we'll ponder it. Okay, so, but on the substance of the Alito opinion, so he goes on to explain, you know, he does think

the states have standing. I think the fact that even he doesn't touch the individual plaintiff's sort of novel standing arguments is striking, but he does believe the states have standing, says they're injured by a range of different parts of the Affordable Care Act, even though this lawsuit doesn't challenge those. So he does seem to be endorsing this standing through inseverability approach. And then having found standing secure, at least for the state plaintiffs

on the merits, he says, look, the zero penalty mandate raises no revenue, so it can no longer be a permissible exercise of Congress's power to tax. So it has to fall. And so too do the other provisions of the Affordable Care Act that the states say burden them and that are inextricably linked to the mandate. He ends, you know, again, more overwrought rhetoric. He says, no one can fail to be impressed by the lengths to which the court has been willing to go to defend the ACA against all threats. I mean, that's more of the fanfic language, right? But then he says, look, a penalty is a tax. The United States is a state. 18 states who bear costly burdens under the ACA cannot even get a foot in the door to raise a constitutional challenge.

Fans of judicial inventiveness will applaud once again, but I must respectfully dissent. Wait, this was his respectful dissent. We're going to get to Holden. Because he has an unrespectful dissent. Wait, this was his respectful dissent. We're going to get to Fulton. Because he has an unrespectful dissent later. Definitely. That sentence is conspicuously absent in Fulton. But just to take another beat or two on the Affordable Care Act, there's a footnote, footnote nine, that I think is worth flagging because Justice Alito is evidently a chaos agent, right? So he makes clear he is gunning for the court to take another Affordable Care Act case. Maybe this one will lose 8-1 if the trend continues.

But he basically says, look, if the effect of the court's decision is dismissal of this action for lack of Article III jurisdiction, the states may file a new action. In any event, many other parties will have standing to bring such a claim based on a variety of the ACA's substantive provisions that are arguably inseverable from the mandate. Our Affordable Care Act epic may go on. Like, why would you want that? I mean, you just think it only takes one, like one successful shot, so you may as well keep taking them and potentially some legal theory will find a more receptive audience. So on the one hand, I want to believe that the kind of judicial saga around the Affordable Care Act is largely over. On the other hand, you know, so long as there are parties interested in continuing to bring these claims, and you know, they get encouragement from the likes of, you know, this Justice Alito footnote, maybe there will be more. I just don't know at this point. I think it's a really terrific point. I will note that in the press coverage of

this case this morning, to a person, I think most of the media pundits have been saying that this is sort of the death knell of Republican objections to the ACA. And I'm like, read the footnotes. It may not be a challenge like this one, but there may be more challenges. It may not be to the full scope of the act, but maybe it's like abortion. It's just sort of this piecemeal chip, chip, chipping away at the various provisions over time. I think that's astute. I mean, I think I definitely said, I think, on ABC this morning, I think this is the last of the big ones, but I confess we got on air

before I'd read all the footnotes. And this footnote gave me pause. You know, this is two justices. So I'm not sure this means there's going to be an appetite on the part of, you know, even four to take up another big kind of frontal assault, but I wouldn't rule it out. But it doesn't have to be a frontal assault. I mean, you could do this over time in chunks. Like, you know, you chip away at this and you chip away at that and suddenly it's sort of a shadow of itself. And, you know, we've seen that work really well

in other contexts. Absolutely. And even in the ACA with respect to the contraceptive care provision. So that is, you know, the playbook is already there. So maybe that's the way the strategy shifts sort of after today. All right. So basically, the court woke up this morning and chose violence because it released two of its most highly anticipated decisions on the same day with a little bit of sovereign

immunity thrown in to break up the excitement. So hot on the heels of the ACA case, we got the much anticipated decision in Fulton versus City of Philadelphia. And quick refresher, Fulton was a follow-on from 2018's Masterpiece Cake Shop, in which the court punted on the broad question of whether religious liberty trumps statutory commitments to equality and anti-discrimination law. In Masterpiece, the court avoided the big question by finding that state officials had demonstrated anti-religious animus against the Christian baker Jack Phillips. So Fulton was a case that brought the same issue squarely before the court in factual circumstances that were also extremely compelling. The background here is that the city of Philadelphia outsources the administration of foster care services, which encompasses a range of services, including the

vetting of prospective foster care parents to private entities. And the city requires all of the agencies to whom it subcontracts this work to comply with its non-discrimination policy, which includes a prohibition on discrimination on the basis of sexual orientation. Catholic Social Services, which is one of the entities to whom the city subcontracts this work, sued the city, arguing that constitutional protections for religious liberty allow it to be exempt from the city's non-discrimination requirement in the vetting of prospective foster care parents. There are a number of questions presented to the court. The first was whether the government violates the First Amendment by conditioning a religious

agency's ability to participate in the foster care system on taking actions and making statements that directly contradict the agency's religious beliefs. The second question, which was a lot bigger, was whether the court's 1990 decision in Employment Division v. Smith should be revisited and overruled. And in Smith, a Native American challenged his ineligibility for unemployment benefits on the ground that the basis for his ineligibility, his use of peyote, a hallucinogenic drug, was part of his religious observance and thus constituted an imposition on his free exercise rights. In resolving the case in favor of the state, the court held that neutral laws of general applicability are subject to rational basis review, even when they have an impact on religion. And

this was a revision of the prior standard under Sherbert v. Ferner, which would have imposed strict scrutiny as the appropriate standard. So today the court, led by the chief justice, crafted a unanimous decision that narrowly threaded the needle, basically concluding that Philadelphia's anti-discrimination mandate infringed Catholic Social Service's free exercise rights, but refusing to take up the invitation to overrule Smith. So specifically the court said

that since the city allowed exemptions to its policies, those policies didn't represent neutral laws of general applicability. This meant that the rational basis test of Smith didn't apply, that the proper way to evaluate the city's requirement was by using strict scrutiny, and that imposing this non-discrimination requirement on Catholic social services did not survive that level of scrutiny. There is a lot to unpack in this decision. It's more muscular approach to religious freedom, the fact that it could have been even more sweeping than it is, but to help us break it all down, we are so delighted to have with us Professor Catherine Franke. Catherine is the James L. Doerr Professor of Law at Columbia University, where she also directs the Center for Gender and Sexuality Law and is the faculty director

of the Law, Rights, and Religion Project. Welcome, Catherine. Great to see you, Melissa and Kate. So we want to go deep on all the different writings in this case. Maybe could we start by asking for your kind of bottom line takeaway from the majority opinion, right? Is this opinion basically status quo preserving? Is it just kind of a rerun of Masterpiece Cake Shop? Or does it in some meaningful way recalibrate the balance of religious liberty and broad equality principles? Well, what I think it does is it solidifies what has been an ongoing recalibration that really reached its strongest

point in the COVID cases. And we've been thinking about this, actually, this last year and a half is a period of COVID opportunism that the right-wing evangelical advocacy organizations have exploited to expand religious liberty rights. And Melissa, I borrowed slash stole that term COVID opportunism from you. So I want to properly credit it. I borrowed slash stole it from Rachel Rabuchet. And so in these COVID cases over the last 18 months, religious organizations have challenged mass gathering bans that governors, I think, reasonably implemented in order to protect public health by saying that if you don't exempt religious organizations from these mass in-person

gathering bans, but you do allow grocery stores and pharmacies to stay open, then you're discriminating against religion. And I think a few years ago, we would have thought that was a laughable argument but it is now the rule of the land the law of the land and so what what Fulton did is just solidify and move a little bit farther down the court that new interpretation of discrimination on the basis of religious identity or religious practice that I would know is so different, if not the opposite, of the way we think about protecting against discrimination on the basis of race or sex or sexual orientation. So we're seeing what I would describe as a kind of tiering or prioritization of certain constitutional rights over others. And religious liberty is

right at the top now. I would imagine the gun case they've taken for next term will also elevate gun rights to first class status and sexual orientation, race, sex, reproductive rights now enjoy a second class status under the Constitution. So even though nothing in the majority opinion by the chief justice explicitly says anything to this effect, the cumulative impact of the COVID cases in particular sort of culminating in the Tandon versus Newsom, California case, but several other COVID cases, and what the court did here basically suggests that religious liberty gets most favored nation status under the Constitution whenever it conflicts with other kinds of rights or protections. Is that basically you think where we are? That's right. This most favored nation

term I think is confusing. I think most people don't understand what it means. So I've been trying to think of it as a kind of religious supremacy, that religious liberty rights are supreme over all other rights. And it's through this series of COVID cases now culminating in Fulton that we see that this is how the court is going to approach religious liberty. And I think we all were worried that Amy Coney Barrett on the court would be a real game changer. Turns out they didn't even need her vote. There were enough And as you suggest, during her confirmation proceedings, the question of her religious faith kind of loomed large, even though it was not explicitly discussed. Kavanaugh and Breyer for all but the first paragraph. What did she make of this concurrence? And what does it tell us about the future of Employment Division v. Smith? This was, again, the precedent that the court declined to overrule here, but still looms large in the determination

of this case. You know, the justices are smart and they're laying the ground for what will come next. And so she's in a way, I think, foreshadowing the way in which I think Smith has now been given what I'll call the Roe treatment. So Roe versus Wade remains good law, at least on paper. But since the day after it was decided, it's been consistently and devastatingly hollowed out through a wide range of Supreme Court decisions such that it does almost no work anymore. And I think Smith has now been hollowed out to such a degree that they don't even have to go to the trouble of overruling it because they've reinterpreted it in such a way that it's consonant with what they might have put in place had they overruled Smith, which would have been a harder thing to justify than just reinterpreting it so that only those of us who are in the know

actually know what happened, as opposed to a headline in the New York Times of, oh, look, they overruled an important precedent. And we may see the same thing happening with Roe. So this is a functional, if not formal, overruling of Smith. What, in your mind, explains the decisions by Justices Breyer, Sotomayor, and Kagan to join in that project? Well, you know, creeping into the minds of Supreme Court justices is always a perilous project. But I think there is a possibility that there was a Alito majority opinion that had five votes, which would have been worse than what we got today. And I think there was an effort to get the more liberal members of the court to join a different opinion rather than dissent in order to do damage control. So having the chief write a decision that doesn't overturn

Smith entirely, but does almost the same doctrinal work as might've been the case if they overturned Smith. And to do so for a unanimous court might have been a tactical decision on the part of the more liberal members of the court to limit some of the bleeding in a case like this. That's a guess. It's an interesting theory, and it does comport with some odd features of the opinion, which are that the Alito dissent, we talked about the length of the Alito dissent in the Affordable Care Act case. I'm sorry, it's concurrence here, but the Alito concurrence, which is a dissenting kind of a concurrence, is 77 pages compared to the 15-page majority opinion. That's an odd length for concurrence, but a perfectly normal in this court length forpage majority opinion. That's an odd length for concurrence, but a perfectly normal

in this court length for a majority opinion. The kind of extensiveness of a historical analysis is something that you see much more frequently in a majority opinion than a concurring opinion. And also there's kind of the clock, right? It took a long time for the court to produce this opinion. And if the kind of internal realignments that you are imagining did occur, then all of that would have taken some time and might explain why we have waited since the beginning of November for this opinion. So I have no idea if this is what happened, but I think it's a very interesting theory. I think it's a completely plausible theory that he lost his majority and everyone had to reassemble. Can I come back, though, to the whole question of Smith? Because your comment suggests

that there's a way in which from 1990 forward, Smith has become a kind of progressive talisman in terms of religious liberty. I just want to sort of tack back to the origins of that case. You know, that was a case where the claim of religious liberty was from a member of a minority religious sect, a Native American who was using hallucinogenic drugs as part of his religious practice. And the court, in a decision authored by noted leftist Antonin Scalia and joined by another noted leftist, Chief Justice William Rehnquist, as well as Justices Stevens, Kennedy, and O'Connor, who joined in the judgment but concurred separately, abandoned strict scrutiny, which would have been the applicable standard of review for a neutral law of general applicability that imposed a burden on religious liberty. How did Smith become a kind of progressive

talisman? And, you know, why aren't we sort of talking about the kind of identity politics that seem to be at play in Smith and are really different from some of the other decisions that are being invoked in this Alito dissent, like Yoder, where the Amish are involved, or Sherbert, where it involves a Seventh-day Adventist, religions that, though minority sects, are closer in their features to Christianity than the Native American religion at issue in Smith. Well, I guess I would take issue with the premise of your question. I'm not sure that Smith was seen as a progressive case when it came down. No. Like later. Alito seems to think of Smith as a real deviation and one that

favors a more expansive understanding of equality as opposed to religious liberty. Yeah. Well, the pre-Smith cases, all of the court's religious liberty cases that they really built out in the 60s and 70s understood religious liberty rights as inextricably tied to an equality norm. They cite the race equality cases when they first developed really that First Amendment religious liberty jurisprudence. They borrow the idea of strict scrutiny that was just being developed by the court. And I think they understood the idea of a pluralistic society has to tolerate lots of different kinds of people, whether it's people who are different on the basis of their race or their religion, and saw it very much as an individualized minority right. And so the court very often,

pre-Smith, engaged in a kind of thoughtful balancing between religious liberty for a small group like the Amish and the larger interest of, let's say, having your kids go to public school and get a secular sort of democratic education. What Smith did was say, well, actually, no, we're not going to accommodate these religious minorities anymore unless they're singled out. And what I saw going on that would motivate Justice Scalia to be the author of that opinion was that he was looking over his shoulder at the race discrimination cases and the idea of disparate impact. And he wanted to make sure that he wasn't developing a norm in the religious liberty context that would come back to bite him

in the race discrimination context. And so both the right and the left went into a state about Smith and said, we have to have some kind of federal statute to protect minority religious communities. And thus we get RFRA three years later, the Religious Freedom Restoration Act, which basically did nothing until about 15 years ago when evangelical Christians took it over. And it's at that point that we start to see RFRA becoming the safe haven of the religious right, when interestingly enough, it was the U.S. Conference of Catholic Bishops who opposed the passage of RFRA when it was being debated in Congress in 91 and 92, because they felt that progressives would use religious liberty rights as a way to justify access to abortion, which had been a tried and true strategy pre-Roe. The clergy consultation service and other religious progressives said, you know, look, I have a faith-based belief that I get to be the steward of my own body.

How many children, how often, no children, or my husband and I should be able to decide that, not the state. So there was a faith-based justification for access to abortion and contraception that we kind of forget about. And that's what, but the bishops had not. And so they opposed the passage of RFRA on that ground. And it was really, they were the holdouts that finally had to be convinced. And today, of course, it's the religious right, including the bishops who have captured religious liberty rights as a sword for their cause. So like most rights, they swing back and forth over time. And I don't see religious liberty rights as being essentially progressive or conservative in their very nature at all, part of what we've been doing at the Law, Rights, and Religion Project at Columbia is try to spell out through time in the United States that there have

been many progressive social movements, including, of course, probably most prominently, the racial justice movements of the 1960s that were faith-based at their core, or at least in a significant way. So I think the swing that we're seeing with religious liberty rights now, hopefully will swing back at some point. The arc of constitutional rights is long. But does it bend toward justice? Yeah, well, not without work. It doesn't do it as a law of physics, right? And that's our work is to try to get some of that

bending happening and lifting up progressive communities of faith, which are often communities of color, to have a space in this discussion. So I guess it's a very long-winded way of taking a little, at least an amendment to your setup for the question. Yeah, I take it as a friendly amendment, and it was a fantastic and really interesting answer. Again, the work that you all are doing at the center is really fantastic and, again, shows that the whole understanding of religious liberty is actually more capacious than perhaps these debates allow. Yeah, if I can add one other thing, Chief Justice Roberts notes early in the Fulton opinion how wonderful Catholic Social Service and other religious organizations have been in kind of filling a gap in the capacity of municipalities or states to address foster care and adoption needs. And gee whiz, isn't that wonderful of them. But historically, my colleague Liz Platt, who directs the Law, Rights, and Religion Project, pointed this out this morning. Those Catholic services were created

because of religious-based discrimination. They weren't just raising their hand as an act of generosity for the city more generally. They were filling a gap of Catholic-based discrimination and other forms of discrimination. And we do see across the country a number of these faith-based adoption agencies, mostly evangelical Christian, being unwilling to vet Jewish parents or parents who are not evangelical Christians. So this is not just an issue that affects the LGBT community. Carving out this kind of exception can influence everyone. And I think in the long run is bad for religious liberty. You know, never mind equality.

It's bad for religious liberty. That's a really fantastic point. And again, I think one that did not really get surfaced in much of the discussion of this case, but we appreciate you bringing it in here. So all that history is so fascinating, Catherine. What Alito seems to want in his separate writing here is to jettison Smith, but not to replace it with this kind of more kind of nuanced, kind of receptive to balancing the need to balance various kinds of important rights claims in a pluralistic democracy with lots of people of faith and lots of people asserting different kinds of

rights, but instead to replace it with this kind of original public meaning, focus on free exercise. And so he does this sort of, since we're talking about Scalia, he does this really kind of peculiar move with both Smith, Scalia's opinion in Smith, and then Scalia's opinion in Heller. Your theory for what actually was driving Justice Scalia and Smith is really smart, Catherine, so maybe that is right. Alito seems just like perplexed, like how could the Scalia he knows, with the method that he advocated, have written Smith? And so he basically doesn't really answer his own question. He sort of poses it, but then says what we should do is use the method, like the one true method that Scalia used in Heller to construe the Second Amendment

to properly interpret the original public meaning of the First Amendment or the Free Exercise Clause at least. And I think does emerge with this sort of primacy of free exercise as compared to other rights and values kind of a sort of takeaway. But it is an odd move. It's so Scalia-focused, and then it so imports this method from an opinion in an entirely different, obviously, domain. But you suggest potentially this is not an arbitrary selection, right? That really this is about potentially a move to elevate free exercise under the First Amendment and gun rights under the Second Amendment and to subordinate other kinds of

constitutional values beneath those two. So I think that that is all really interesting and illuminating. Catherine, is there anything else about the Alito opinion that you want to highlight for our listeners? Well, I think he also tells a particularly idiosyncratic story of the pre-Smith jurisprudence. And he does his math wrong in terms of how long ago those cases were, which one of his clerks or somebody should have caught. But those opinions have not been in place as long as he states they are. But just to go back to something we were talking about earlier, what the court did as it was developing that early religious liberty jurisprudence was really impose a kind of not strict scrutiny at all, but reasoned and careful balancing.

And it was before, of course, the court had all these tiers of scrutiny as part of the kind of core constitutional doctrine that in some ways is walking away from now in other contexts and was able to hold two ideas in their head at the same time. And I think what we're seeing with this court, and Alito, I think is an excellent example, is he can't think two values at the same time. One has to be vanquished from the scene in order for him to take another one seriously. And that's one of the amazing cool things about the Constitution is that it's trying to hold a lot of complexity and do so in a way that gives us the tools for how to manage that complexity. And so some of what this jurisprudence

is doing, I think, is dumbing down the Constitution and creating a kind of jurisprudence that is always one-off, you know, so that we can say, oh, well, this is a very limited interpretation. It's limited to the facts or some of the sort of strangeness of the particular statute. But that, to me, isn't what a sophisticated Supreme Court does in most cases and cases like this. Why take the case if all they're going to do is issue some kind of technocratic reading as opposed to thinking hard about hard things? And I don't see the dominant majority of this court actually willing to do that. And I think that does a disservice, not just to religious liberty, but to the Constitution itself. Well, that is a powerful note on which to end. So, Catherine, thank you so much for joining us

and for sharing that amazing history of the First Amendment and religious liberty and our long and winding path to this particular moment. We will be back next week with a longer episode going through this last opinion drop. So we'll pick up Nestle versus Doe. And of course, we'll have Leah to weigh in on the ACA challenge. But we are so grateful to you listeners for joining us for this emergency episode. And Catherine, thank you for logging on to help us parse through all of these different threads. And if you are a fan of the pod and would like to support the work that we're doing, you can check out www.strictscrutinypodcast.com. And if you'd like to support the pod by being a subscriber, check us out on www.glow.fm

forward slash strict scrutiny. Thanks so much to Melody Rowell, our producer who makes us sound so great and to Eddie Cooper who does our music. We will see you next time.