The Supreme Court’s broken-clock style of justice

Originally published on Sumner Newscow on June 25, 2021

Happy Friday.

In these politically polarizing times, it’s a bittersweet realization that there’s only one thing everyone in the country can agree on: The Supreme Court sucks.

Nobody has been truly happy with the highest court in the land for decades. The only time we praise them is when they manage to affirm some basic human right like marriage or privacy (but not wealth equality).

In true Supreme Court fashion, they made one good decision last week…only to balance it with a terrible one. Both cases have the potential to drastically affect American culture, so let’s break them down.

The terrible decision first.

In 2018, a private adoption agency named Catholic social services (CSS) had a policy of never allowing same-sex couples to adopt one of the children in their care. To its credit, CSS never had a same-sex couple apply at their agency, but the policy’s existence violated Philadelphia’s nondiscrimination requirements for all independent contractors.

The specific nondiscrimination policy in question stated:

“prohibiting (the contractor) from discriminating due to race, color, religion, or national origin, and it incorporated the City’s Fair Practices Ordinance, which in part prohibits sexual orientation discrimination in public accommodations.”

CSS refused to comply because they claimed the last part violated their religious liberties, because finding kids good homes comes second on their list of priorities. Right after ensuring gay people don’t have the same rights as straight people.

CSS is a private contractor and is free to make any decision they like, naturally. The nondiscrimination language only requires contractors to screen everyone the same way, which went a step too far for the agency. Even letting gay people go through the process was too much apparently.

So, did Philly close the agency down and ruin the livelihoods of all the employees and (more importantly) the children in their care? Of course, they didn’t. The city merely said they wouldn’t send any more referrals to the agency until they changed the policy. The city even went as far as to tell CSS that they look forward working with them again once they took out their homophobic language.

The letter specifically said:

Philadelphia has “respect [for CSS’s] sincere religious beliefs, but your freedom to express them is not at issue here where you have chosen voluntarily to partner with us in providing government-funded, secular social services.”

After Philly sent that letter, however, CSS sued the city for violating its contract with the agency. The contract allows independent contractors to make exceptions to whom they discriminate against because the law was written way back when religious social service providers were the primary handlers of adoption.

That’s no longer the case, however, and nowadays the city just renews single-year contracts with all their adoption providers in addition to operating state-controlled adoption centers.

The suit went through two lower courts, both siding with the city. The appellate court for Pennsylvania’s circuit even said in their decision “the City’s nondiscrimination policy is a neutral, generally applicable law, and the religious views of CSS do not entitle it to an exception from that policy.”

Finally, the Supreme Court decided to weigh in on this already twice-resolved situation.

The Court unanimously sided with Catholic social services because of the aforementioned exception for discrimination on the basis of religion. While the lower courts determined that discrimination was still discrimination no matter who’s doing it, the Big court was more particular about the wording.

In practice, this just means that the City will get rid of that language in the law and not renew its contract with CSS. That means the agency can still operate as it always has and the city just doesn’t have to give it any tax dollars, which is the best-case scenario for everyone. The real danger came from the concurring opinion.

Side note: you might be thinking “what the hell, I thought there were some liberals on the court?” and you’d be correct. There was some inner-court politics that went into this ruling and I believe the Justices knew this wouldn’t be a harmful decision in practice. That’s merely speculation, though, feel free to get mad at them if you like.

Justice Alito wrote a truly worrisome concurring opinion that both Justice Thomas and Justice Gorsuch signed onto. In their opinion, the ruling didn’t go far enough in favor of CSS and the Court should’ve used this opportunity to overturn Employment Division v. Smith.

Employment Division v. Smith is the case that decided you can’t break the law just because you’re religious. Antonin Scalia, of all people, wrote in the majority opinion that allowing exceptions to every state law or regulation affecting religion “would open the prospect of constitutionally required exemptions from civic obligations of almost every conceivable kind.”

In layman’s terms: you can’t claim religious liberty against laws that don’t directly target religious doctrine because otherwise everyone could get out of any law they didn’t like by claiming their church told them to.

If a growing part of this Supreme Court decides that Employment Division v. Smith shouldn’t be the rule of law anymore, that means any private business or individual can discriminate against queer people just for being queer. That means doctors, employers, schools, and anyone else could claim “religious liberty” and get away with discrimination.

For the record, the majority of religious people believe homosexuality should be accepted and given the same rights as straight, cisgender people. This isn’t a religion problem; it’s a bigotory problem hijacking religion.

By the way, those same members who wrote the separate opinion also advocated “looking back into Obergefell v. Hodges.” That’s the case that guarantees marriage equality, so Happy Pride from the Supreme Court.

But like any other broken clock, the Court did eventually get something right.

On Wednesday, June 23, the Justices ruled 8-1 in favor of a high school student named BL (named censored because she’s a minor) who sued her school. BL claimed the school unfairly punished her for something she said off school property and that she should be allowed to resume her spot on the cheerleading team.

BL didn’t make the cut for the varsity cheer squad (heartbreaking) and she was upset about it. She then, as any high schooler might, added a video to her Snapchat story with the eloquent quote “f*** school, f*** softball, f*** cheer, f*** everything.”

“Fuck school, fuck softball, fuck cheer, fuck everything”

– future voice of a generation

I would recommend a rewrite and probably leave off the softball part (rule of threes and all), but this seems like typical high school nonsense to me.

The school disagreed, however, and suspended BL from cheer for an entire year. Before we go any further, I believe the school has the right to suspend BL, but certainly not for what she said on her own time, off school property, using her private social media.

Surprisingly, the Supreme Court and I agree on this point. They argued that students, even minors, do not check their first amendment rights at the schoolhouse door and they can express themselves however they like.

The Court did carve out some common-sense exceptions to the rule, however. The current Supreme Court Justices may be immoral, but they aren’t stupid and know that kids are evil from the ages of 12 – 19. The exceptions are:

“serious or severe bullying or harassment targeting particular individuals; threats aimed at teachers or other students; the failure to follow rules concerning lessons, the writing of papers, the use of computers, or participation in other online school activities; and breaches of school security devices, including material maintained within school computers.”

Clarence Thomas was the lone dissenter because if there’s anything good happening, Thomas would like to run head-first in the opposite direction.

This is the first time in over half a century that a minor won a free speech case at the Supreme Court and I’m excited about it. High school kids are largely stupid and terrible, but they do also deserve the same rights the rest of us do and we should celebrate when that American principal is reaffirmed.

Meme of the week

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