A Victory for True Liberalism (Not Leftist Progressivism)

Progressives are (mostly) hesitant to denounce a 9-0 decision in favor of a Catholic social service agency’s right to not include same-sex couples when placing foster care children, pointing out that the decision was made on narrow grounds while at the same time calling for passage of the Equality Act to ensure that religious exceptions are prohibited under federal law.

Some of the more perceptive commentaries follow below.

4 Comments for “A Victory for True Liberalism (Not Leftist Progressivism)”

  1. posted by Tom Scharbach on

    Progressives are (mostly) hesitant to denounce a 9-0 decision in favor of a Catholic social service agency’s right to not include same-sex couples when placing foster care children, pointing out that the decision was made on narrow grounds …

    Progressives are not alone in pointing out that Chief Justice Roberts’ majority opinion was very narrow, a decision that did not affect the principle (“rational basis” test for laws of general application) established by Justice Scalia’s opinion in Employment Division. In fact, the Court specifically elected not to reevaluate Employment Division by a 6-3 margin.

    Justice Alito, in his concurrence/dissent, took “the majority” (meaning Chief Justice Roberts, who appears to have been the driving force behind the opinion) to task for not overturning Employment Division:

    [T]he Court has emitted a wisp of a decision that leaves religious liberty in a confused and vulnerable state. Those who count on this Court to stand up for the First Amendment have every right to be disappointed—as am I.

    The end result is that the decision decides nothing other than that the particular circumstances of the case allowed the Court to not consider Employment Division. As Justice Gorsuch pointed out in his dissent, joined in by Justices Alito and Thomas:

    “Dodging the question today guarantees it will recur tomorrow. These cases will keep coming until the Court musters the fortitude to supply an answer. Respectfully, it should have done so today.”

    The battle over Employment Division will go on in future Terms. I’m not at all sure how the decision was a “A Victory for True Liberalism“, unless one of the principles of “True Liberalism” is to kick the can down the alley.

  2. posted by Kosh III on

    Despite the alleged narrowness of this decision, expect the nanny state theocrats and radical regressives to continue to seek any means possible including the coercive power of the state, to destroy life, liberty and pursuit of happiness for anyone not submissive to their religious OPINION.
    Just to be clear, my husband is a retired cleric and we both profess authentic Christianity.

  3. posted by Tom Scharbach on

    Well, Kosh, it is interesting how Stephen and other adherents of True Liberalism turned against Justice Scalia and Employment Division when the free exercise question no longer involved suppression of peyote use by indigenous religionists and instead involved laws preventing True Christians from discriminating against gays and lesbians.

    Sooner or later, the Court will have to directly confront Employment Division, and decide whether or not to overturn it. If the Court does, that will bring True Liberalism full circle, because Employment Division effectively overturned Yoder.

    Yoder applied Sherbert’s “substantial burden” test to laws of general application as well as targeted laws, and that interfered with the government’s ability to suppress minority religions (e.g. indigenous religions, Old Order Anabaptists, Jehovah’s Witnesses and other minority religions). Employment Division brought the constitutional standard back to Reynolds, which turned on the question of whether or not the government could suppress Mormon religious practice, interestingly enough.

    The plethora of anti-equality bills making their way through Republican legislatures right now will provide the opportunity, sooner or later, for the adherents of True Liberalism to force the Court to act on Employment Division instead of dodging the question. I’m not betting on Employment Division at this point.

  4. posted by Jorge on

    Some of the more perceptive commentaries follow below.

    I agree.

    However much the decision may be written on “magic paper” for this dispute, I think the Supreme Court was correct to call out and take a hammer to the practice of making a special exemption for the Catholic Church in such a way that would infringe upon its rights. The city tries to claim that the Commissioner himself would never give an exemption. That is still the Commissioner himself deciding to discriminate. That cannot stand. Destroying that practice was worth it.

    It is fitting that progressive bigotry be dismantled piece by piece, preserving as much of it as possible–which may or may not be nothing in the end. But let us prove that.


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