Legal Docket - A unanimous win for Christian foster care

MARY REICHARD, HOST: It’s Monday June 21st and welcome back to another week of The World and Everything in It. Glad you’re along with us today! I’m Mary Reichard.

NICK EICHER, HOST: And I’m Nick Eicher. Good morning.

We’re down to that time of year when Supreme Court decisions come fast and furious and we’ll get to Legal Docket in just a moment.

But very quickly, let me say first that we’re in the home stretch of our June Giving Drive. We’re more than halfway there and if you’ve given already, thank you. We do rely on you to provide the resources we use to produce and deliver this program to you each morning—this and all the journalism we do at WORLD.

This is our last full week and then just three days the week after to reach our goal of $950,000. If you look online you’ll see the running tally—with 10 days remaining—we need to average about $45,000 a day.

I know that sounds like a lot and it is, but how we get there is we have something like 200,000 people just like you who listen and from that large population lots of people chipping in as they’re able has so far gotten the job done.

REICHARD: Right, so we do need you to visit WNG.org/donate and make that gift of support and we’d be grateful if you’d do that today. I do find myself clicking the “refresh” button a little too obsessively, but this time of year it just goes with the territory. So please make your gift today and then pray others follow your example and we reach our goal.

EICHER: The place to go is WNG.org/donate.

Well, giving drive season is also decision season at the U.S. Supreme Court and let’s get going on a jam-packed Legal Docket.

Fifteen decisions to go and five to report from last week.

REICHARD: We’ll start with the biggest religious-liberty case of the term, Fulton v City of Philadelphia.

All nine justices handed a unanimous, yet narrowly decided, victory to a Catholic foster care agency in Philadelphia.

Quick word of background: The city would not renew its contract with Catholic Social Services to vet foster parents because the agency doesn’t place children in LGBT homes.

Catholic teaching that’s based on the Biblical truth that marriage is “one man, one woman” placed the organization at odds with the city’s policy of nondiscrimination on the basis of sexual orientation.

Catholic Social Services sued, arguing the city discriminated against it.

And all nine the justices agreed with that, but only on slender contract reasoning: a clause in the contract permits discretion by a city official to grant exceptions to the city’s nondiscrimination policy on non-religious grounds. That discretionary element makes the law not generally applicable and not neutral in application.

So this is a win for Catholic Social Services, but barely. It doesn’t stop other government intrusions into religious freedom going on across the country.

As Justice Samuel Alito wrote in his concurring opinion, the city could easily remove that offending language to satisfy this ruling and go right back to discriminating.

Alito expressed what many people thought of this case during argument in November:

ALITO: If we are honest about what is really going on here, it’s not about ensuring that same-sex couples in Philadelphia have the opportunity to be foster parents. It’s the fact that the city can’t stand the message that Catholic Social Services and the Archdiocese are sending by continuing to adhere to the old fashioned view about marriage.

Alito’s concurrence, joined by Justices Clarence Thomas and Neil Gorsuch, details why the court should overturn a precedent the courts still rely on: Employment Division v Smith. That decision said any law that is neutral and generally applicable is okay, even if it infringes on religious freedom.

Alito summed up the ruling this way: “... the Court has emitted a wisp of a decision that leaves religious liberty in a confused and vulnerable state.”

EICHER: Another big case: by a 7-2 vote on technical grounds, the majority turns away the third legal challenge to the Affordable Care Act. The opinion found that challengers to Obamacare lacked standing to sue because they’d not sustained any direct injury. Meaning, the opinion did not reach the merits of the case.

Again, Justice Alito, joined by Justice Gorsuch, wrote a caustic dissent, finding states are burdened by Obamacare’s financial requirements, and that ought to be enough standing to qualify to sue. Quote: “Fans of judicial inventiveness will applaud once again. But I must respectfully dissent.”

REICHARD: I’ll add that Democrats’ warning about Amy Coney Barrett during her confirmation hearing did not pan out. They’d predicted she’d vote to undo the ACA. She did not.

Okay onto the third ruling: a big win for big chocolate.

Six former child slaves from the country of Mali allege American companies Nestle and Cargill aided and abetted child slavery in cocoa bean production on African plantations. Those operations in turn supplied the companies with cocoa.

The plaintiffs sued under the Alien Tort Statute. That permits foreign nationals to seek redress in U.S. federal courts for serious violations of international law.

You can hear the eventual ruling in this comment from Justice Stephen Breyer during oral argument in December:

BREYER: Now what counts as aiding and abetting for purposes of this statute? … it seemed to me that all or virtually all of your complaints amount to doing business with these people. They help pay for the farm. And that's about it. Well, unfortunately, child labor, it's terrible, but it exists throughout the world in many, many places.

A majority of eight justices ruled the companies are not liable under the Alien Tort Statute for labor abuses that happened in distant points of their supply chain. Decisions related to child labor happened overseas, not on American soil.

EICHER: Fourth opinion makes it easier for appeals courts to affirm the sentences of felons found in possession of a firearm.

Here, two men are convicted felons found in possession of guns. That’s a crime in itself and carries heavier penalties. They each want a new sentencing hearing based on a Supreme Court ruling from 2019. That said only people who actually know they are felons should receive the enhanced penalty.

But the court by a 8-1 vote disagrees, given that these men had multiple prior felonies. Bottom line? No new sentencing hearing for either man.

REICHARD: And last, the final opinion from last week. A decision that doesn’t give low-level drug offenders a break on their sentences.

Former President Trump’s criminal justice reform aimed to let drug offenders caught with large amounts of crack cocaine seek a reduced sentence. But eight justices agreed the language of the law doesn’t apply to lesser drug offenses. In her concurrence, Justice Sonia Sotomayor called on Congress to fix the problem if lawmakers don’t like it.

EICHER: Today we turn our attention to what’s going on in the lower courts. That’s where the vast majority of litigation ends, because so little of it makes it to the Supreme Court. So during the summer months to come, when the high court is out of session, we’ll talk with several religious-liberty legal organizations that deal with lower court cases.

REICHARD: Today, you’ll hear from First Liberty Institute. Jeremy Dys is special counsel for litigation and communications.

So Jeremy, let's start with Massachusetts. That state’s been stringent to toss religious practice into the bin labeled non essential as far as COVID restrictions. And First Liberty Institute got involved in a dispute there. Tell us about that.

DYS: Yeah, we've been doing this now for what? A year plus? About whether or not churches are going to be able to exercise their religious beliefs, even during a time of a pandemic. Let's take ourselves back at the beginning of this whole thing to recognize that we were facing kind of this unknown quantity trying to figure it all out. And I thought a lot of churches pivoted very well to address that, to figure out how to go online, doing creative things like drive in church services, because they've got a command themselves that they have to gather with fellow believers as well. But it became pretty clear pretty quick that local officials especially and then some governors, too, were going to take the inch that they were given and go a full mile with the whole thing. The more and more we understand this virus, the more we realize that the real virus has been this overreach by government. And so thankfully, when we push back, we're able to get good resolutions on these things.

REICHARD: So sometimes a well-placed letter can resolve these problems short of suing. Okay, let's move on now to the case of the US Army chaplain Andrew Calvert. He posted something on his personal Facebook account and got in trouble. What happened?

DYS: Well, he made a statement on his Facebook page expressing his religious beliefs and his support for the Department of Defense's prohibition against transgender service members. And when his post was posted those statements were completely consistent and very supportive of existing DOD regulations and policies. But it didn't matter. The army investigator concluded that chaplain Calvert's religious beliefs violated army policy, and the army suspended him from his duties as a chaplain. And so we've submitted a letter rebutting these allegations and this investigation. And we're asking now the reprimand against Chaplain Calvert be removed so that he wouldn't end Chaplain Calvert's career.

REICHARD: This next case we’ll talk about is particularly interesting, about prayer in the jury box. And a juror mentioned in the jury room he had prayed about his evaluation of the case, and someone told the judge, who threw the whole case out. But that didn’t hold on appeal, did it?

DYS: Yeah, Judge Pryor said of the 11th circuit when he handed down this decision. He said quote, “jurors may pray for and believe they have received divine guidance as they determine another person's innocence or guilt, a profound civic duty but a daunting task to say the least,” unquote. That shouldn't be terribly surprising. But I'm grateful to have these words from Judge Pryor reminding us that even in the most basic of civic duties when we're sitting in on a jury, we are still allowed to carry our religious beliefs and practices into that jury room and consult a higher being than even the judge sitting on the bench.

REICHARD: OK, final case I want to talk about, Jeremy. A college student at odds with a request to get a covid vaccine. What’s this one about?

DYS: Yeah. Jackie Gail is a student at the University of Alabama-Birmingham. So she’s gone through one year already as a freshman, and she's reapplying for her second year picking out her classes. Here's a young lady who their family made a decision years ago for religious reasons that they would not receive any vaccinations. And so her entire life, she's not had a single vaccination. And she's turned out, okay, it turns out it. But she goes to reapply for the next semester and there's a hold on her account, she's not allowed to re register. And it turns out that they are requiring her to have vaccinations in order to return in the fall.

Well, that's a non-starter for the Gale family. And so she asked for religious accommodation, which the state of Alabama provides to its students. And in this, the University was very slow to respond on this and initially said, no. But once we send a letter to them pointing out what the law has to say about this, they began adjusting their position on that fairly quickly, and recognizing that you know, look, people can have different perspectives on this. But if you're going to allow a medical exemption for vaccinations, you can't then turn around and say that people who have a religious objection to have an exemption should be treated differently. And so thankfully, I think that's resolving itself.

But I suspect we're gonna see a lot more of these kinds of cases around the country as colleges get back into session in the fall and university officials begin to demand not just regular vaccinations, but these COVID vaccinations that there's still a lot of concern about here.

Good on Jackie, for standing up against a position that most people would just simply, you know, take, take a pass on. I wish we had more young men and women in this country that were willing to have a strong presence of their convictions and to live by those. So good for Jackie Gale for standing up for religious convictions.

REICHARD: That’s Jeremy Dys of First Liberty Institute.

And that’s this week’s Legal Docket.

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