Tag archives: Supreme Court

The Supreme Court Protects Religious Liberty—Barely

by Katherine Beck Johnson

June 17, 2021

Catholic Social Services’ (CSS) 9-0 victory before the Supreme Court today in Fulton v. City of Philadelphia, while unanimous, can’t be allowed to overshadow serious differences among the justices on how to approach religious liberty.

This case involved CSS’s ability to operate in accordance with their Catholic faith. The City of Philadelphia had pressured CSS to either give up the Church’s teaching on marriage and family or give up their ministry of finding children loving homes. CSS refused to go against its strongly-held religious belief that marriage is between a man and a woman. After years of litigation, the Supreme Court today held that Philadelphia violated the First Amendment by allowing secular but not religious exceptions to their fostering contracts, like the one held by CSS.

To be clear, this decision was a win. For now, CSS will be able to operate in accordance with its religious beliefs and continue placing children in most need. The organization will not be forced to shut its doors because it refuses to compromise its faith.

Unfortunately, the win was narrow, coming up short of a huge victory. The Supreme Court did the bare minimum to protect CSS and other faith adherents. It was only because Philadelphia had other exceptions, but not religious ones, that the Court found the city in violation of the First Amendment. As Justice Alito noted in his concurrence, the secular exceptions were essentially boilerplate language in the city’s contract that they did not enforce and will be very easy for them to delete—effectively leaving CSS with no protection. As Justice Alito said, “[t]his decision might as well be written on the dissolving paper sold in magic shops.”

The Court should have overturned Employment Division v. Smith, which held that a law is constitutional as long as it is generally applicable and does not target religion. Smith was wrong when it was decided, and it is wrong today. Justice Gorsuch was correct when he said, “[o]ne way or another, the majority seems determined to declare there is no “need” or “reason” to revisit Smith today. But tell that to CSS. Its litigation has already lasted years—and today’s (ir)resolution promises more of the same.”

The ever-growing demands from the Left and their radical gender ideology being imposed on more and more of America make it increasingly impossible for a person to live out their Christian faith while operating in the foster care and adoption space (or many other aspects of society). Evidently, the City of Philadelphia would rather children languish in the system without loving homes than allow CSS to operate in accordance with its faith. Catholics in Philadelphia and throughout our country deserve better than that—and are afforded more than that in our Constitution.

Although today’s opinion allows CSS to continue operating without compromising its faith, that likely won’t be the case for long. Soon, the Court will have to answer if a city can force a religious agency to violate its beliefs if no secular exceptions were provided. The answer is no, and that should have been the answer today. Justices Roberts, Barrett, Kavanaugh, Breyer, Sotomayor, and Kagan refused to answer this.

Today, Justices Alito, Thomas, and Gorsuch were the only members of the nation’s highest court who demonstrated awareness of the pressing need to revisit Smith and rightly protect religious adherents. Let us hope more justices join them in the future.

Fidelity to the Constitution Requires Roe’s Reversal

by Mary Szoch

May 27, 2021

Before joining the policy world, I taught history in Catholic schools. One of my favorite units was on the Supreme Court. Students were required to memorize the justices’ names, review various cases, and argue how the justices should rule in each case. The biggest challenge I faced as a teacher was convincing students that their determination of how justices should rule needed to be based in the United States Constitution, not in personal opinion. Sadly, this is not a problem only middle school teachers face but one confronting all Americans who recognize the role and purpose of the highest court in the land.

Last week, the Supreme Court agreed to review Dobbs v. Jackson Women’s Health—a case asking whether Mississippi’s ban on abortion after 15 weeks is constitutional. The Court’s decision to review this case is terrifying pro-abortion activists across the country because not only does Dobbs have the potential to overturn Roe v. Wade and Planned Parenthood v. Casey, but if the Supreme Court justices follow their obligation to the Constitution, the Dobbs decision should overturn Roe and Casey.

In Roe, the Court argued that under the 14th Amendment, the Due Process Clause, a woman has a right to privacy, and as such, she has a constitutional right to an abortion. As part of this decision, the Court said that the states had the power to regulate abortion in the first trimester for any reason, in the second trimester in the interest of the woman’s health, and in the third trimester, the state could outlaw abortion. In the Court’s 1992 decision Planned Parenthood vs. Casey, the Court reaffirmed Roe’s finding that a woman has the right to an abortion but changed the requirements for outlawing abortion from the trimester framework to a viability framework.

As any former student of mine should be able to attest, the words “right to privacy” that are used to justify the right to an abortion in both Roe and Casey do not appear anywhere in the Constitution—neither do the words “viability ” or “trimester.” The seven justices who ruled in favor of Roe, and the five justices who ruled in favor of Planned Parenthood fell into the same trap that plagued my 8th graders. They ruled based on their personal opinion—not on the United States Constitution.

Many have speculated that the outcome of Dobbs will be less than satisfactory to those in the pro-life movement—suggesting that the decision will likely favor a more incremental walk-back of Roe and Casey rather than a full reversal. I hope they are wrong.

If my middle school students (who were very bright, but still, middle school students) were the ones deciding Dobbs, I could understand another failure to decide an abortion case based on the Constitution. I could understand that for a third time, middle school students might substitute their own opinions and create their own framework for when and how abortion should be allowed. But the nine individuals deciding this case have been educated far beyond middle school by teachers and professors far more knowledgeable than me. In fact, these nine men and women are some of the best and the brightest this country has to offer, and more importantly, they have taken an oath to defend and uphold the Constitution.

As the Dobbs case is argued and the opinion is written, the pro-life movement must pray that the nine justices are able to recognize that overturning Roe and Casey is not a form of judicial advocacy, a decision based on religious principles, or an ideological answer to the pro-life movement. Overturning Roe and Casey is what fidelity to the Constitution requires.

6 Times the Supreme Court Has Ruled Against California Church Restrictions

by Kaitlyn Shepherd

April 29, 2021

On Monday, the U.S. Supreme Court vacated a Ninth Circuit Court of Appeals decision in a case challenging restrictions California imposed on houses of worship due to the COVID-19 pandemic. Monday’s order marks the sixth time that the Supreme Court has ruled against unfair restrictions that treated California churches more strictly than secular businesses.

For months, California churches faced particularly complicated and onerous restrictions that limited church attendance and inhibited religious exercise. In multiple cases, churches and pastors faced fines or the threat of imprisonment for holding indoor worship services. However, following Justice Barrett’s appointment to the Supreme Court in October 2020, California churches have started to experience relief. As of April 23, 2021, California’s guidance for houses of worship states that “location and capacity limits on places of worship are not mandatory but are strongly recommended. Additionally, the restrictions on indoor singing and chanting are recommended only.”

The Supreme Court’s willingness to defend religious liberty is a welcome development. Because of the Court’s guidance on this issue, more and more states are relaxing their worship restrictions. As of April 26, 2021, 41 states impose no restrictions on in-person indoor worship. Only nine states and the District of Columbia still impose a percentage-based limit on indoor worship. D.C. is the last remaining jurisdiction that imposes both a percentage limit and a numerical cap on the number of people who can congregate for indoor worship services. However, these restrictions were enjoined by court order in March 2021, and the D.C. government has announced it will remove the numerical cap beginning May 1, 2021.

What follows is a timeline of the six times the U.S. Supreme Court has issued opinions or orders upholding the rights of churches against California’s COVID-19 restrictions.

1. South Bay United Pentecostal Church v. Newsom

On February 5, 2021, the Supreme Court enjoined California’s total ban on indoor worship in Tier 1 counties (i.e., those where the risk of COVID-19 transmission was said to be widespread). The Court’s decision allowed churches in these counties to reopen at 25 percent capacity but left the state’s ban on indoor singing and chanting in place. In a separate statement, Justice Gorsuch, joined by Justices Thomas and Alito, noted that “California has openly imposed more stringent regulations on religious institutions than on many businesses.”

2. Harvest Rock Church v. Newsom

On the same day, the Supreme Court partially granted an injunction that prevented California from enforcing its total ban on indoor worship services against Harvest Rock Church while the case was being resolved in the lower courts. The decision allowed Harvest Rock and other churches in Tier 1 counties to reopen at 25 percent capacity, but it kept California’s ban on indoor singing and chanting in place. Although they joined the majority’s order, Justices Thomas and Gorsuch stated that they would have granted the injunction against the capacity limits and the ban on singing and chanting as well.

3. Gish v. Newsom

On February 8, 2021, the Supreme Court vacated a California district court’s dismissal of a case that challenged various state and local orders banning indoor worship services. The Supreme Court directed the lower court to reconsider the case in light of its recent South Bay decision.

4. Gateway City Church v. Newsom

On February 26, 2021, the Supreme Court granted an injunction that prevented enforcement of California’s restrictions against Gateway City Church. Noting that the “outcome [was] clearly dictated by [its] decision in South Bay United Pentecostal Church v. Newsom,” the Court admonished the lower court, saying its “failure to grant relief was erroneous.”

5. Tandon v. Newsom

On April 9, 2021, the Supreme Court granted another injunction against California’s restrictions. This time, the Court addressed California’s requirement that at-home religious gatherings could not contain more than three separate households. In its opinion, the Court emphasized that “government regulations are not neutral and generally applicable … whenever they treat any comparable secular activity more favorably than religious exercise.” The Court added that some secular activities being treated worse than religious ones is not a defense. It also stressed that the government bears the burden of showing “that measures less restrictive of the First Amendment activity could not address its interest in reducing the spread of COVID.” Because California “treat[ed] some comparable secular activities more favorably than at-home religious exercise” and the lower court did not find that religious activities posed more of a threat than the secular activities, the Court found that the “[a]pplicants [were] likely to succeed on the merits of their free exercise claim” and that an injunction was warranted.                                                                           

6. South Bay United Pentecostal Church v. Newsom

On April 26, 2021, the Supreme Court returned to South Bay United Pentecostal Church’s case. The Court vacated the judgment of the Ninth Circuit Court of Appeals and remanded the case for reconsideration in light of its decision in Tandon v. Newsom.

It is unfortunate to have seen so much discrimination against religious gatherings over the past year. For a full list of such instances, see here. May we continue to work and pray toward the protection of our freedom to gather as believers and live out our faith during this time.

Roe is Legally Flawed and Should Be Overturned

by David K.

February 26, 2021

On the 48th anniversary of Roe v. Wade, President Biden reaffirmed his desire to codify Roe into federal law, reflecting the Democratic Party’s fear that Roe is nearing its end.

While the Supreme Court has yet to add an abortion case to its docket, the number of pending cases challenging key provisions in Roe and Planned Parenthood v. Casey (which affirmed the central holding of Roe, that a woman has a constitutional right to abortion) continues to grow. In light of Justice Amy Coney Barrett’s nomination, legal, and legislative trends support a future reversal. This is due, in part, to Roe’s inherent legal inconsistencies. Not only did Justice Blackmun contradict himself in his majority opinion in Roe, new bodies of criminal law are incompatible with Roe’s foundational assumptions.

Former Justice Ruth Bader Ginsburg herself criticized Roe’s rationale, stating that it “went beyond the extreme ruling of the statute before the court.” Abortion advocates similarly recognize Roe’s critical flaws, mainly a lack of reasonable inference from a constitutionally enumerated right.

The contradiction within the Court’s rational is another reason to reevaluate its holding. First, it rejected the existence of an absolute right to privacy, then nine pages later made that right absolute in the first trimester of pregnancy. Two interests were at issue, the mother’s privacy interest and the state’s interest in protecting unborn persons. The Court should have ended the analysis there recognizing the compelling interest in protecting unborn persons.

The inconsistency of legal personhood is highlighted in criminal feticide laws. This is yet another indicator of its inherent incongruity. Unborn children are recognized as humans in other situations outside of abortion. For example, in 1984, the Massachusetts Supreme Court recognized unborn persons in vehicular homicide cases. Since then, 38 states have passed laws recognizing unborn victim status. Federal lawmakers followed suit, passing the 2004 Unborn Victims of Violence Act. Legal scholars recognize the dilemma this legal trend poses. How can courts grant the unborn personhood in criminal law while refusing it in the context of legal abortions?

Lawsuits in response to the 2020 presidential election, civil unrest, and the Covid-19 pandemic have captured the Supreme Court’s attention for the moment, but the abortion issue will soon have its day in court. If the Court with three new justices corrects the legal inconsistencies in its previous holding, the abortion issue will likely return to the 50 state legislatures, allowing states like Alabama to reinstitute significant protections for the unborn. So long as Congress refrains from packing the Court, it will likely not be a matter of if Roe will be overturned, but when.

David K. is an intern at FRC Action.

Supreme Court Protects Women’s Health by Reinstating FDA Restriction on Chemical Abortion

by Mary Szoch

January 18, 2021

On January 12, the Supreme Court granted the Food and Drug Administration (FDA)’s request to reinstate its requirements surrounding the distribution of the mifepristone abortion regimen. This ruling reversed a federal judge in Maryland’s ruling that blocked the FDA’s in person distribution requirement for the regimen citing the challenges to chemical abortion access presented by the COVID-19 pandemic. The Supreme Court decision was a win for women’s health. 

In 2000, under the leadership of the pro-abortion Clinton administration, the FDA approved mifepristone for abortion usage and declared that mifepristone was subject to certain distribution restrictions to ensure safe usage. In 2011, these restrictions were converted to Risk Evaluation and Mitigation Strategies, otherwise known as REMS. The FDA decided to place restrictions on this drug because mifepristone carries with it life-threatening and health-endangering risks, such as hemorrhage, infection, incomplete pregnancy, retained fetal parts, the need for emergency surgery, and even death.

The restrictions, which were weakened but ultimately kept in place by the pro-abortion Obama administration in 2016, are meant to protect the women taking the drug. Under the current REMS, the drug must be prescribed by a health care provider who can assess patient eligibility, diagnose ectopic pregnancies, and provide or facilitate emergency surgical intervention in the case of an incomplete abortion or severe bleeding. Under FDA rules, mifepristone is not available from pharmacies. Notably, the 2016 weakening of the REMS removed the requirement for manufacturers to report any adverse events to the FDA other than death.   

The FDA is “responsible for protecting public health by assuring the safety, efficacy and security of human and veterinary drugs, biological products, medical devices, our nation’s food supply, cosmetics, and products that emit radiation.” Though the FDA operates under the Executive branch, a department responsible for protecting public health by ensuring the safety, efficacy, and security of human and veterinary drugs should not be a political organization. Its decision to put restrictions on mifepristone are based on the drug’s ability to harm women—not on a political agenda.

This spring, the ACLU filed a lawsuit demanding that the FDA temporarily suspend enforcement of the REMS so that women could receive mifepristone through the mail, thus eliminating the requirement for patients to see a health care provider prior to ingesting this dangerous drug. The ACLU argued that the patient had already been evaluated by a clinician either using telehealth or at a prior in-person visit, thus negating the need for another in-person visit to receive the drug.

Unfortunately for women, their health care is certainly not a top priority in this lawsuit. Though a doctor may be able to determine how far along a pregnancy is or diagnose an ectopic pregnancy through telemedicine, it is certainly not best medical practice. Failing to diagnose an ectopic pregnancy or to properly assess the length of a pregnancy can cause serious harm—and even death—to the woman taking the mifepristone. The Maryland court’s acceptance of the ACLU arguments puts women’s lives at risk.

Thankfully, for the time being, the Supreme Court decision issued a stay of the preliminary injunction that reinstated the REMS requirement. This means the Court will allow the FDA to once again enforce its requirement for now. In his concurrence granting the stay, Roberts wrote that the “courts owe significant deference to the politically accountable entities with the ‘background, competence, and expertise to assess public health.’” In other words, Robert’s deferred to the FDA rather than specifically voting because of the risk to women’s lives.

Under the Biden administration, the FDA will have the opportunity to continue supporting the REMS, just like they did under the two proceeding pro-abortion Democratic administrations, or to do away them. In the past 20 years, mifepristone has not gotten any safer for women. Hopefully, under the Biden administration, the FDA will not decide to play politics with women’s lives.

What Is “Originalism”?

by Mary Beth Waddell, J.D.

October 22, 2020

Following last week’s confirmation hearing for Supreme Court nominee Judge Amy Coney Barrett, the Senate Judiciary Committee today unanimously voted her nomination favorably to the floor—with no Democrats even bothering to show up. As Sen. John Cornyn (R-Texas) pointed out, they were continuing their theater from the hearing.

At the hearing, some senators rightly noted that those watching were probably confused by what they saw and heard. The Democrats spent much of their allotted time making speeches in opposition to President Donald Trump and his policies, rather than questioning Judge Barrett and evaluating her qualifications. This gave the false impression that she would have policymaking ability if confirmed as a justice. When Democrats did question Judge Barrett, there was significant focus on her judicial philosophy of originalism. While questions about judicial philosophy are entirely appropriate, some Democrats mischaracterized originalism—leading to more confusion and further elevating the false narrative that she would be a judicial activist.

So, what is originalism?

While there are several strains of this judicial philosophy, we should look to Judge Barrett’s own explanation of the doctrine during her confirmation hearing, especially since it is her perspective that will matter here:

I interpret the Constitution as a law … I interpret its text as text, and I understand it to have the meaning that it had at the time [the] people ratified it. So, that meaning doesn’t change over time, and it’s not up to me to update it or infuse my own policy views into it.

She later said:

It’s original public meaning, not the subjective intent of any particular drafter, that matters. We are not controlled by how James Madison [the father of the Constitution] perceived any particular problem, but rather the people at that time.

Of course, Barrett isn’t the only one who holds to this judicial philosophy. Even some with a more liberal leaning, like Professor Akhil Amar of Yale Law School, are originalists.

For guidance on the Constitution’s “plain meaning,” it is important to have some historical context. The Federalist Papers are a series of essays that were written to gain the public’s support for the ratification of the Constitution, so they are a great source of information on the subject. Alexander Hamilton, the principal author of The Federalist Papers, focused on the Judiciary in Federalist 78 through 83 and wrote that the courts should base their decisions on “the fundamental law,” and when a statute is unconstitutional, it is their duty to adhere to the Constitution and strike the statute down.

Some of the Founders feared that the Judiciary, the branch least controlled by the people, could ultimately become the most powerful of the three. Hamilton noted that the Judiciary could not significantly hinder liberty in and of itself, but it would be dangerous if it was ever combined with one of the other branches.

The Federalist Papers are very clear that the Judiciary was expected to be the weakest of the three branches of the federal government. Therefore, Hamilton pointed out that “the supposed danger of judiciary encroachments on the legislative authority” was “in reality a phantom” because its power was bounded by its weakness, constitutional construction, and the legislature having impeachment power if necessary.

With this historical context, it becomes clear that originalism is a judicial philosophy that acts as a brake on runaway judicial power. Looking to the Constitution as our reference point, originalism acknowledges that the Judiciary would be a threat to freedom if it began legislating instead of just upholding the Constitution. Originalism is all about keeping the will of the people central and not imposing the Supreme Court justices’ own beliefs.

It’s important to note that the historical restraint of originalism doesn’t necessitate race discrimination, as was unfortunately the practice in 1791. Democrats implied this as a reason why they generally oppose originalism as a judicial philosophy. As for Judge Barrett, she stated that “Brown [the Supreme Court case that ended school segregation] was correct as an original matter.”

Originalism also doesn’t mean that the Constitution can’t be applied to modern times. Responding to Sen. Ben Sasse (R-Neb.) during her confirmation hearing on how originalism still applies to current issues, Judge Barrett said:

The Constitution—one reason why it is the longest-lasting written constitution in the world is because it is written at a level of generality that is specific enough to protect rights but general enough to be lasting.

When discussing Fourth Amendment issues of today with Sen. Marsha Blackburn (R-Tenn.), Judge Barrett further said:

The Fourth Amendment protects against unreasonable searches and seizures. It doesn’t mean that it protects only the kinds of searches and seizures that those who lived at the time of the adoption of the Bill of Rights could have anticipated. Surely, they could not have anticipated the internet or cell phones or airplanes, for that matter. One can reason from the kinds of privacy protections that were in place in 1791 when the Fourth Amendment was ratified to see if the search of modern technology now is analogous to it.

In her exchange with Judge Barrett, Sen. Diane Feinstein (D-Calif.), the highest-ranking Democrat on the Committee, peppered Judge Barrett with questions on policy and said her vote depended on the answers.  Yet this shows that Democrats want the Judiciary to act as a quasi-legislative body—the very thing the Framers feared. As an originalist, Judge Barrett will constrain herself to the law and not impose her own will on the people. She repeatedly let this be known throughout the hearing.

Having originalist judges on the Supreme Court prevents judicial activism and helps keep the one branch of government designed to be most removed from politics apolitical. The politicization and activism we have seen from the Court in recent decades make it more vital now than ever to ensure we have originalist justices on the Court.

The full Senate will begin consideration of Judge Barrett’s nomination on October 23. Debate and procedural votes will occur over the course of a few days, and the final floor vote is scheduled for October 26.

Let us hope and pray that we will have a new justice on the Supreme Court before October’s end!

In Fulton, the Religious Liberty of Foster Care Providers Hangs in the Balance

by Kaitlyn Shepherd

October 21, 2020

During its last term, the Supreme Court garnered considerable attention by wading into the culture wars over polarizing social issues such as abortion and sexuality. Decisions to strike down a common-sense law requiring abortionists to have hospital admitting privileges and to redefine “sex” to include sexual orientation and gender identity were mourned by conservatives and applauded by liberals.

While secular activists lamented, conservatives celebrated decisions upholding the rights of religious families and schools to participate in neutral tuition assistance programs and requiring foreign organizations to adopt policies opposing prostitution and sex trafficking to receive federal funds to combat HIV/AIDS. The Court will likely remain in the public eye during its current term, when it will hear arguments in Fulton v. City of Philadelphia, a case that will have significant implications for the future of religious liberty and foster care in America. The justices will hear oral arguments in the case on November 4.

The First Amendment provides that “Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof ….” Thus, the Constitution protects religious liberty in two separate but related provisions. The Establishment Clause prevents Congress from favoring any religious denomination at the national level, while the Free Exercise Clause guarantees Americans the right to believe and act according to their religious convictions. Both Clauses also constrain the actions of the states. Prior to 1963, the right to freely exercise one’s religion was somewhat limited. While an individual’s religious beliefs were absolutely protected, his or her freedom to act on those beliefs could be fairly easily regulated.  

In 1963 and 1972, the Supreme Court decided two landmark religious liberty cases, Sherbert v. Verner and Wisconsin v. Yoder. These cases established the strict scrutiny standard, which means that when the government implements a law or policy that burdens someone’s right to free exercise, it must show (1) that it has a compelling state interest that justifies its burden on religious exercise and (2) that its law or policy is the least restrictive means of accomplishing this compelling interest. Because of their robust protection of religious liberty, Sherbert and Yoder ushered in a Golden Age of religious freedom in America.

In 1990, the Court issued an unexpected decision that dramatically changed religious liberty protections. In Employment Division v. Smith, the Court abandoned the strict scrutiny standard and held that the government only needs to show that its law or policy is neutral and generally applicable in order to overcome a free exercise challenge. This “neutral law of general applicability” standard waters down protections for religious liberty by giving the government a lower bar to overcome. The government only needs to demonstrate that the law treats religious and secular groups equally and was not enacted to target religion. Under this standard, religious individuals are rarely successful in court and must prove that they were actively targeted for their religious beliefs to prevail.

In its upcoming term, the Court will consider Fulton v. City of Philadelphia. The decision will impact the rights of religious foster care agencies to speak and act consistently with their sincerely held religious beliefs. One of the plaintiffs in the case, Catholic Social Services (CSS), is a faith-based foster care agency that operates in Philadelphia. When a child enters Philadelphia’s foster care system, the City refers them to one of several foster care agencies. These agencies then evaluate prospective foster parents to certify that they meet state standards. Because of its sincerely held religious belief that marriage is between one man and one woman, CSS considers same-sex couples to be unmarried and is unable to certify them as foster parents. However, if an LGBT-identified couple were ever to approach them (which has never happened), CSS would refer them to another agency that would be a better fit. Nevertheless, Philadelphia’s Department of Human Services has stopped referring children to CSS.

In the lower courts, CSS argued that the City’s actions were neither neutral nor generally applicable and targeted CSS because of its religious beliefs. The Third Circuit Court of Appeals held that there was no First Amendment violation and that Philadelphia did not treat CSS differently because of its religious beliefs. Rather, the court found that Philadelphia was merely engaged in a good-faith effort to enforce its nondiscrimination policy, which “prohibits sexual orientation discrimination in public accommodations.”  

In Fulton, one of the major issues that the Supreme Court will consider is whether it should revisit its decision in Employment Division v. Smith. If the Court revisits and overrules Smith, it will be a major victory for religious liberty that could restore the favorable strict scrutiny standard. However, if the Court declines to revisit Smith, or revisits and upholds Smith, its damaging precedent will become further entrenched in American law, dealing a major blow to religious liberty. The Court’s decision could be influenced by its recent decision in Bostock v. Clayton County, which, as Justice Alito predicted in his dissent, could affect the speech of those who desire to “express[] disapproval of same-sex relationships …”

Allowing religious discrimination against faith-based foster care agencies would not just be a blow to the constitutionally-protected right of religious liberty. It would also be detrimental to the already overburdened foster care system. In states and localities that have forced religious agencies to close, children suffer. For example, after Illinois passed a statute that forced all foster care and adoption agencies to place children with same-sex couples, nearly 3,000 children were displaced from religious agencies that were forced to close, and over 5,000 foster homes were lost. In Philadelphia, the home of a “Foster Parent of the Year” award winner who had been serving needy youth for decades was forcibly closed to foster youth, as were others. After the City ended its contract with CSS, siblings of children who had already been placed by the agency faced the daunting prospective of being forced into separate homes.  

Pennsylvania is not the only state to witness the targeting of religious foster care agencies. In Michigan, an activist couple targeted St. Vincent Catholic Charities, passing four other agencies they could have worked with as they traveled from their home to St. Vincent. Here, referrals had been made. Children in St. Vincent’s care had been transferred to other agencies working with LGBT-identified couples who were interested in adopting children in St. Vincent’s care. And in New York, New Hope Family Services, which has been serving needy children for over 50 years, was informed by the state that it must either change its policy of referring LGBT-identified couples to other agencies or cease its adoption services. A New York District Court judge recently issued an injunction on behalf of the church, preventing the state “from revoking New Hope Family Services’ authorization to place children for adoption.”

In Fulton, the Court stands poised to issue a decision that will have a lasting impact on the religious liberty of foster care agencies and perhaps that of all Americans. While we watch and wait for the Court’s decision, we should pray that God would give the justices wisdom to make the right decision.

Kaitlyn Shepherd is a legal intern with the Policy & Government Affairs Department at Family Research Council.

Judging Amy: The Left’s Proclivity for Believing and Empowering Women Is Limited To Their Own

by Laura Grossberndt

October 20, 2020

Believe women.”

The slogan, born out of the #MeToo movement, was a common refrain during the Senate Judiciary hearings in September 2018 leading up to Brett Kavanaugh’s confirmation to the Supreme Court of the United States. Some even inserted an “all” to make it “Believe all women.” Essentially, the message of “Believe women” was to forsake bias and take women at their word.

During the confirmation hearings for Judge Amy Coney Barrett last week, the “Believe women” refrain was absent. Maybe it shouldn’t have been. Not because any women were accusing the nominee of sexual misconduct (there are no such allegations against Barrett) but because time and again, the Democratic members of the Senate Judiciary—as well as members of the media—refused to take the judge at her word.

Not only did they often refuse to believe Barrett, but numerous journalists and political pundits also violated a list of rules for reporting on female candidates for public office that a coalition of powerful, progressive women had sent to the news media ahead of Democratic presidential nominee Joe Biden’s announcement of his vice-presidential running mate. The list of sexist pitfalls to avoid included:

  • Reporting on a woman’s ambition
  • Reporting on a woman’s likability
  • Reporting on a woman’s appearance or tone of voice
  • Reporting on doubts about a woman’s qualifications, despite her being equally or more qualified than her male peers

Each of the rules listed above were broken during the Barrett confirmation process. This not only reveals inconsistencies between the way the media chooses to report about men and women, but it also reveals inconsistencies between the way the ideological Left insists women ought to be treated and how some of their own number treat more moderate and conservative-minded women. Senator Marsha Blackburn (R-Tenn.), a member of the Judiciary Committee, tweeted in support of Barrett, alleging that the left “doesn’t like women that have their own mind” and said that Barrett is attacked and denigrated because she does not fit their idea of a “perfect woman.”

Here are five ways the ideological Left’s handling of the Barrett hearings exposes their hypocritical inclination to believe and empower only certain women—those who conform to their ideology.

#1: By Not Taking Her at Her Word

At confirmation hearings, the members of the Senate Judiciary Committee question judicial nominees under oath. This is so the Senate can better fulfill its constitutional “advice and consent” role.

Confirmation hearings are meant to entail thorough questioning. But Judiciary Democrats seemed determined to disbelieve Judge Barrett from the start. Senator Richard Blumenthal (D-Conn.) implied that Barrett was dishonestly concealing her personal pro-life beliefs by not including two pro-life petitions that she had signed as a member of her church in her initial 1,800-page disclosure (she included these in her supplemental disclosures, which are common to have). Senator Amy Klobuchar (D-Minn.) doubted whether anyone could ascertain Barrett’s intentions from her sworn statements at the hearings, saying “the only way for the American people to figure out how you might rule is to follow your record and follow the tracks.” Committee members repeatedly asked Barrett if she had any understandings or made any deals with the president, such as voting to end the Affordable Care Act (ACA) or overturn Roe v. Wade. Senator Kamala Harris (D-Calif.) implied Barrett might act as a pawn of the president when she asked whether the judge’s piece commenting on the ACA was a signal for Trump to pick her. Each of the numerous times these doubts were raised, Barrett stressed her judicial independence, personal integrity, and commitment to the rule of law:

I have not made any commitments or deals or anything like that. I’m not here on a mission to destroy the Affordable Care Act. I’m just here to apply the law and adhere to the rule of law.

And again:

I have no mission and no agenda. Judges don’t have campaign promises.

Regarding her integrity as a judge:

I certainly hope that all members of the committee have more confidence in my integrity than to think that I would allow myself to be used as a pawn to decide the election for the American people.

And:

I do assure you of my integrity.

Those who know Judge Barrett best professionally describe her as someone deserving of being taken at her word. Patricia O’Hara, professor emerita at Notre Dame Law School, introduced Barrett at the confirmation hearings, describing her as “fair and impartial.” On the final day of hearings, Laura Wolk, a former student of Barrett’s at Notre Dame and the first blind female Supreme Court clerk, testified on her mentor’s behalf, hailing her as eminently trustworthy: “She is a woman of her word. She means what she says, and she says what she means. When she promised to advocate for me, she commanded my trust.”

During Barrett’s hearings, it was clear that Judiciary Democrats either doubted the judge’s veracity under oath or simply didn’t want to believe her.

#2: By Implying She Doesn’t Have Her Own Mind

Opponents to Judge Barrett’s nomination have had the audacity to imply that she wouldn’t be making her own decisions on the bench. They seem to imagine her functioning as a sort of pawn or proxy “doing the bidding” of a man calling the shots (pick one: the president, her husband, her late mentor Antonin Scalia, the Pope). Insinuations of this nature are highly insulting, as they willfully ignore Barrett’s stellar qualifications as a judge, misunderstand her faith, and disbelieve her own statements under oath that she is intellectually independent and not beholden to anyone or anything but the Constitution. So much for “believing women.”

During day three of the confirmation hearings, Barrett acknowledged that she shares Justice’s Scalia’s judicial philosophy of originalism and textualism. However, she had to clarify multiple times that she should not be mistaken for a carbon copy of Scalia who would always rule in the same manner that he did. As she told Sen. Chris Coons (D-Del.) (emphasis added):

I do share Justice Scalia’s approach to text, originalism and textualism. But in the litany of cases that you’ve just identified, the particular votes that he cast are a different question of whether I would agree with the way that he applied those principles in particular cases. And I’ve already said, and I hope that you aren’t suggesting that I don’t have my own mind or that I couldn’t think independently or that I would just decide “let me see what Justice Scalia has said about this in the past,” because I assure you I have my own mind. But everything that he said is not necessarily what I would agree with or what I would do if I were Justice Barrett. That was Justice Scalia. So, I share his philosophy, but I have never said that I would always reach the same outcome as he did.

Barrett intelligently responded to Judiciary Committee questioning for hours over the course of two days with absolutely no notes in front of her, an impressive feat that few people could match. Those doubting her knowledge, independence, and competence embarrass themselves.

#3: By Objecting To Her Career Success and Aspirations as “Ambition”

The Washington Post ran a story that described Judge Barrett as “unleashing her ambition,” while Slate disparaged her as “a shameless, cynical careerist who believes nobody can stop her.” The article continued, “what’s wrong with Barrett isn’t that she’s too pious, or that she’s submissive in her personal life. It’s that she’s bent on making herself one of the nine most powerful judges in the country.”

It’s hard to imagine such statements being made about a male nominee or a female nominee whose judicial philosophy and policy positions more closely align with the Left. Indeed, the late Justice Ruth Bader Ginsburg has been lauded for her “trailblazing career” and breaking the glass ceiling. It begs the question: why would it be wrong for any woman, especially one as qualified as Barrett, to aspire to sit on the Supreme Court? Furthermore, it’s unclear how Barrett fits the description of “ambitious” besides being so good at her job that someone else noticed and nominated her for the Supreme Court.

Senator Joni Ernst (R-Iowa), a member of the Judiciary Committee and a military veteran, tweeted in response to the Slate article:

This is the kind of sexist garbage women have been dealing with for far too long. Women can be anything we want to be: a farmer, a military officer, a Senator, and yes even a Supreme Court Justice.

#4: By Judging Her by Her Appearance (to a degree that wouldn’t be done to her male peers)

The clothes Barrett wore to her confirmation hearings were neat, professional, and stylish. They looked an awful lot like the clothes countless other professional women on Capitol Hill wear. A male nominee comparatively well-dressed would not have garnered the reactions Barrett’s choice of clothing elicited. And women the Left loves—like Michelle Obama—are praised for their fashion sense. But even something as innocuous as clothes was seized upon by Barrett’s critics as an opportunity to disparage her.

The Daily Beast published an entire article centered on the dress Judge Barrett wore on day one of the confirmation hearings (and no, it wasn’t about where to buy it or “how to copy her look”). The author interpreted Barrett’s choice of clothing as a calculated distraction, saying her dress “projected capability and congeniality” while she did “the bidding” of the president. Here we have a sexist one-two punch of hyper-focusing on a woman’s clothing choice and portraying her as a mindless sycophant, despite abundant evidence to the contrary.

Barrett’s critics have embraced the demeaning caricature of her as a subservient “handmaiden” à la The Handmaid’s Tale. Former congresswoman Katie Hill thought she saw evidence of this false caricature represented in Barrett’s clothing, tweeting on day three of the hearings: “I hate to be someone who judges women on their clothes but I’m sorry ACB’s outfits are all way too handmaids-y.” Hill later deleted the tweet after negative response. Senator Ernst once again tweeted in Barrett’s defense:

The liberal left is attacking Judge Barrett in this way because they can’t attack her on her qualifications or character. No woman should have to deal with this kind of blatant sexism.

#5: By Questioning Her Ability To Parent and Do Her Job

Some on the ideological Left questioned whether Judge Barrett could handle being “a loving, present mom” and a Supreme Court justice. It’s highly doubtful that anyone has ever questioned a male Supreme Court nominee’s ability to be a loving, present father. If a more progressively-minded judge were being nominated for the Court, would the media express comparable concern for her school-aged children? It’s hard to say since Barrett is the first such mother of school-aged children to be nominated.

Slate described Barrett’s inspirational story as “a trap” to trick women into thinking that they “can have it all” and don’t need abortion in order to succeed. On the contrary, more women need to be shown that they shouldn’t have to abort their children in order to have a fulfilling life or career. Barrett might seem like a unicorn for now, but only because she’s blazing a path for other women to follow.

A True Role Model

Justice Ginsburg recalled being asked when she thought there would be enough women on the Supreme Court. Her reply? “When there are nine … There’d been nine men, and nobody’s ever raised a question about that.” This famous quote by Ginsburg has been hailed by her admirers and many on the ideological Left. Yet, when a conservative woman is nominated to the Court, it is clear that they would prefer a male judge who shares their ideology than a conservative female judge who has sworn that she will interpret the law rather than legislate from the bench.

Judge Amy Coney Barrett is highly qualified to sit on the Supreme Court. Instead of the inconsequential—and, at times, sexist—things her critics have harped on, consider this list of accomplishments and accolades. In other words, things that truly matter:

  • First in her class at Notre Dame Law School, where she was executive editor of the Notre Dame Law Review 
  • Clerked for Judge Laurence H. Silberman of the U.S. Court of Appeals for the D.C. Circuit and for Associate Justice Antonin Scalia of the U.S. Supreme Court
  • Worked as an associate at Miller, Cassidy, Larroca & Lewin and then at Baker Botts in Washington, D.C.
  • Former visiting associate professor and John M. Olin Fellow in Law at the George Washington University Law School
  • Former visiting associate professor of law at the University of Virginia
  • Professor of law at Notre Dame Law School
  • Member of the American Law Institute (ALI)
  • Judge on the U.S. Court of Appeals for the Seventh Circuit
  • Endorsed by all of her fellow Notre Dame law professors in 2017
  • Endorsed by all of her fellow 1998 Supreme Court clerks in 2017
  • Rated by the American Bar Association as “well qualified” to serve on the Supreme Court

Patricia O’Hara of Notre Dame Law School summed up Barrett as a judge thus: “In her three years as a judge on the Seventh Circuit, her opinions have been characterized by the same quality as her scholarship — intellectual rigor, painstaking analysis, clarity of legal reasoning and writing. Accompanied by her deep commitment as a jurist to apply the law to the facts before her.”

Throughout her life and career, Barrett has exemplified what we should want in a Supreme Court nominee. What would this confirmation process have been like if everyone had spent less time analyzing her wardrobe and more time looking at her qualifications and taking her at her word? I guess we’ll never know.

Ideological progressives and the media talk a big talk of “believing women” and empowering them. But their treatment of Supreme Court nominee Amy Coney Barrett in recent days signals to more moderate and conservative-minded women that progressives only believe and empower certain women who fit their preferred mold, to the exclusion of others.

However, to the thousands of women who don’t fit this preferred mold, Judge Barrett truly is a role model.

Senate Democrats: Tone-Deaf on Religious Freedom

by Travis Weber, J.D., LL.M.

October 14, 2020

Throughout the last several days of Senate Judiciary Committee Democrats using Amy Coney Barrett as a political prop for their re-election campaigns (and antagonism toward President Trump), Senator Mazie Hirono from Hawaii turned in one of the worst performances on day three of the confirmation hearing—exhibiting a tone-deafness to religious freedom that was almost bizarre.

Among her list of cases on a giant poster-board supposedly showing that the sky would fall if Barrett is confirmed, Hirono included South Bay United Pentecostal Church v. Newsom, which she claimed is putting “COVID safety measures” at risk.

Yet, South Bay is a case in which the Supreme Court refused to step in and protect a church from being discriminated against under coronavirus restrictions, after California continued to treat religious worship gatherings less equally than “factories, offices, supermarkets, restaurants, retail stores, pharmacies, shopping malls, pet grooming shops, bookstores, florists, hair salons, and cannabis dispensaries” under its approach to the coronavirus.

Why is Hirono using a case in which a church is being shut down to claim that coronavirus restrictions are at risk? Either she devalues religious freedom that much, or is blind to the needs of such churches.

But that church’s pastor, Amada Huizar, is not. He has had to face the very real and serious consequences of what has happened because churches have been unconstitutionally shuttered around the country: harm to communities and the people who live in them. Pastor Huizar recently joined FRC President Tony Perkins on Washington Watch to share the incredible life-and-death story of his decision to reopen his church, and spoke at Freedom Sunday, an event held to call on churches to reopen in the face of unconstitutional restrictions on them around the country.

Senator Hirono may simply be tone-deaf to the religious freedom rights of Pastor Huizar and others like him. The alternative is that she thinks so little of the First Amendment that she’s willing to use a case suppressing a church’s rights in her bid to block Judge Barrett’s confirmation. Either possibility is dismal in terms of respect for our First Amendment and the Constitution.

Roe Isn’t Super … or Super-Precedent

by Katherine Beck Johnson

October 13, 2020

In the second day of Judge Amy Coney Barrett’s Senate confirmation hearing, many members of the Senate Judiciary Committee, particularly Sen. Amy Klobuchar (D-Minn.), questioned the Supreme Court nominee about the concept of “super-precedent.” Barrett has previously written that seven cases are currently understood by legal academics as super-precedent, including Brown v. Board of Education. She defined super-precedent as “cases that no justice would overrule, even if she disagrees with the interpretative premises from which the precedent proceeds.” Barrett said at the hearing that, according to this definition, Roe v. Wade does not qualify as super-precedent.

When asked why Brown is super-precedent and Roe is not, Barrett explained that Brown is super-precedent because the Supreme Court decided that the “separate but equal doctrine” is unconstitutional and because the American people have accepted the Court’s decision as settled law. Segregation is a horrible stain on our nation’s history. Thankfully, it is now accepted that racism and segregation is a moral evil that will no longer be tolerated in our country. Because there are no legal challenges advocating for segregation, Brown is clearly settled law.

Barrett said Roe does not qualify as super-precedent because the American people have not accepted this Supreme Court decision that legalized abortion in all 50 states. She is right. Many American people believe abortion is a moral evil that should not be tolerated in our country. The Republican Party platform supports a human life amendment to the Constitution clarifying that the unborn are protected by the 14th Amendment. The March for Life, which draws hundreds of thousands of people from all over the country, takes place every January in Washington, D.C. on the anniversary of Roe.  

Quite significantly, a number of states have passed strong pro-life laws in recent years, and there are also numerous lawsuits currently challenging abortion.

Last year, Alabama passed a comprehensive law affirming and protecting human life at all stages—a model for how to fully protect life. States have defunded abortion and abortionists. Other states like Colorado are proposing ballot measures to protect life this fall. Certain states like Nebraska have passed dismemberment bans, and others have passed laws protecting the dignity of the remains of the unborn. Arkansas, Georgia, Iowa, Kentucky, Louisiana, Mississippi, and Ohio have all passed heartbeat bills. These bills seek to prohibit abortion when a heartbeat can be detected, which can be as early as six weeks into pregnancy. States have passed laws that aim to protect the targeting of children with Down syndrome in the womb or other special needs. States have passed laws protecting children from being aborted simply because of their race or gender. The eugenic act of ending children’s lives based on their identity is another reason why many Americans refuse to accept Roe as settled law.

By contrast, no major party has a platform advocating for segregation. No states are calling for segregation to be legalized. There is no annual march in support of segregation. The notion of “separate but equal” is viewed by Americans as being unconstitutional. Therefore, Brown deserves to be deemed super-precedent.

While our country has overcome the evil of segregation, the stain of abortion is still with us. Many Americans long for a day when abortion’s unconstitutionality is settled law, and the most vulnerable among us are protected under the law. Until that day, we will continue to fight for the unborn to have the right to life. As long as Americans refuse to accept it, Roe will remain unsettled law that does not deserve to be considered super-precedent. Judge Amy Coney Barrett is correct when she says Roe v. Wade is not super-precedent.

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