Fulton and ACA: Supreme Court Culture War Day surprises

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The US Supreme Court remains capable of delivering big surprise decisions that don’t predictably break along partisan lines.

This is perhaps an important takeaway from Thursday’s main rulings, in which a court dominated by Republican candidates upheld the affordable care law for the third time, and liberal justices joined in a unanimous decision. that Philadelphia cannot ban a Catholic agency that refused to work with same-sex couples from foster parent screening.

Why we wrote this

The Supreme Court can, like America itself, be more partisan than ever. But Thursday offered two big deals that haven’t broken along predictable ideological lines.

“We hear all the time about divisions, polarization, culture wars and all that. But it is a 9-0 decision in a case involving religion and gay rights. And that’s important, ”said Richard Garnett, director of the Church, State and Society program at the University of Notre Dame’s law school, referring to the foster parent’s case.

Closely watched, the burning issues are not often decided unanimously by the High Court.

In fact, there is clearly a strong desire among judges, both liberal and conservative, to find common ground and identify areas of religious freedom where there can be broad agreement, says Walter Olson du Cato. Institute.

“They have to realize that there is this commitment on the part of the nine judges, and they are serious about it. … They all care about religious freedom, ”says Olson.

The Supreme Court of the United States remains capable of making big surprise decisions that do not predictably break along partisan lines.

This is perhaps an important takeaway from Thursday’s main rulings, in which a court dominated by Republican candidates upheld the affordable care law for the third time, and liberal justices joined in a unanimous decision that Philadelphia cannot ban a Catholic agency that refused to work with same-sex couples from screening foster parents.

“We hear all the time about divisions, polarization, culture wars and all that. But it is a 9-0 decision in a case involving religion and gay rights. And that’s important, ”said Richard Garnett, director of the Church, State and Society program at the University of Notre Dame’s law school, referring to the foster parent’s case.

Why we wrote this

The Supreme Court can, like America itself, be more partisan than ever. But Thursday offered two big deals that haven’t broken along predictable ideological lines.

The ruling on the Affordable Care Act – the great government-delivered health care expansion passed under Barack Obama – could mark the conclusion of a particularly bitter and protracted political struggle.

Republicans have tried, and failed, to end what they deem a costly act of government overtaking since its inception. While it is possible for opponents to launch another legal attack, its margin of protection in the High Court grows, with Thursday’s 7-2 ruling possibly sending the message that the ACA is the law of the land .

More than 21 million people would have lost their health insurance if the Supreme Court had overturned the law, by some estimates.

Opponents have shown remarkable energy in opposing the law and may continue to try to do so, says Steven Schwinn, University of Illinois professor at Chicago Law School.

“With each passing trial and each passing convention, the ACA becomes more entrenched in our health care system and in our law. People have come to trust it, states have come to trust it, ”says Professor Schwinn.

The ACA’s third trip to the Supreme Court

The case involving ACA, California v. Texas, represents the third time the High Court has refused to overturn the law since Congress passed it in 2010. In 2012, the court ruled 5-4 that the law represented a constitutional use of Congress. “Power to tax” – Chief Justice John Roberts providing the deciding vote.

In 2017, as part of its tax cut, Congress reduced the penalty for violating a provision of the law – known as an “individual warrant” – requiring most Americans to $ 0. Health Insurance. Texas and 17 other states have filed a lawsuit claiming that, because the warrant now has no monetary penalty, it cannot be considered a tax, and therefore the entire law is unconstitutional. (Two people then joined Texas as plaintiffs. Because the Trump administration sided with Texas, 16 states and the District of Columbia – led by California – stepped in to defend the law.)

Oral argument in the case came weeks after Judge Amy Coney Barrett joined the court, solidifying a qualified majority of six Tory judges. Given this composition, some judicial observers believed that this case would spell the end of the law.

To win, however, Texas would have to overcome a series of hurdles. In today’s ruling, seven judges – including Judge Barrett – agreed it came first: stand up.

Standing is a preliminary issue which essentially asks whether a party should have the capacity to bring a case in the first place. Plaintiffs must claim “a particular individual prejudice” which can probably be “remedied by the relief sought,” the majority wrote Judge Stephen Breyer. notice.

“Neither the individual nor the complaining State has shown that the harm they will suffer or have suffered is ‘sufficiently attributable’ to the ‘allegedly unlawful conduct’ of which they are complaining,” he added.

A border of religious freedom holds

The case concerning the Catholic reception agency, Fulton v. City of Philadelphia, can be seen as a big victory for religious liberty advocates, but perhaps not as big as some would have liked, especially given the Supreme Court ruling more and more sympathetic views demands for religious freedom.

In 2018, a Philadelphia newspaper reported that Catholic Social Services – a Roman Catholic Church-affiliated foster care agency that had been under contract with the city for more than 50 years – would not consider same-sex married couples. future foster parents. The denial, the city of Philadelphia said, violated a local nondiscrimination ordinance, and the city’s social services department said it would no longer refer children to the CSS.

The agency and three of her foster parents have filed a lawsuit, claiming the freeze on removals violated the free exercise and free speech clauses of the First Amendment. Lower courts sided with Philadelphia, noting in particular that the city’s non-discrimination provision was constitutional because it applied equally to all religions, a precedent the high court set in the 1990 ruling. Division of Employment c. Smith.

Appealing to the Supreme Court, CSS and the foster parents also asked the judges if Smith should be reconsidered. In today’s divided but unanimous opinion, the court ruled that Philadelphia’s refusal to enter into a contract with the agency violated the free-practice clause because Philadelphia allows exceptions to its policies for other agencies than CSS.

“If a law already provides exceptions, religious people have the constitutional right to say, ‘why not for us, if you make exceptions for others? ”Says Walter Olson, senior researcher at Cato Institute’s Robert A Levy Center for Constitutional Studies in Washington.

The ruling did not examine whether the city’s actions also violated the free speech clause. Perhaps more importantly, Chief Justice Roberts wrote by the majority notice, the case “falls outside Smith’s jurisdiction” because Philadelphia’s non-discrimination policies “do not meet the requirement of neutrality and general application.”

Smith, written by conservative judicial titan Justice Antonin Scalia, is an important precedent for boundary marking in First Amendment law. In a country where sincere religious beliefs are protected, but may conflict with other laws, Smith argues that religious entities can only exempt themselves from laws if they specifically restrict their free exercise rights. Overthrowing Smith could open the door to religious entities that exempt themselves from laws that affect large swathes of society.

How did the court arrive at 9-0?

Groups that support LGBTQ rights said the Philadelphia ruling did not license to discriminate on the basis of religious beliefs. But they were still disappointed with the decision, as many had filed friend of the court briefs in favor of the city.

In fact, no same-sex couple has ever applied to CSS for foster parent status. Other agencies continue to work with LGBTQ couples in Philadelphia who wish to welcome children in need of a home.

“This case is of great symbolic importance to the gay rights movement. They really don’t like religious exemptions, but it doesn’t matter much in practice because no one is turned down, ”says Douglas Laycock, professor of law at the University of Virginia Law School.

But why the 9-0 vote? Closely watched, the burning issues are not often decided unanimously by the High Court.

There is clearly a strong desire among judges, both liberal and conservative, to find common ground and identify areas of religious freedom in which there can be broad agreement, says Mr. Olson of the Cato Institute.

Chief Justice Roberts and other conservatives fear people will lose confidence in their decisions, and liberal justices are also realizing that some people are suspicious of the court as a secular institution.

“They have to realize that there is this commitment on the part of the nine judges, and they are serious about it. … They all care about religious freedom, ”says Olson.

Editors Harry Bruinius and Noah Robertson contributed to this report.

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