Since the two justices were neither voting to grant the appeal nor dissenting from its denial, their opinion was entirely gratuitous. They simply used the case as a platform to reiterate warnings about the threat to religion from official recognition of same-sex marriage.
Justice Barrett was not yet confirmed when Justices Thomas and Alito issued this statement. I wonder whether she would have signed it. It was pure grievance conservatism, with no effect other than to invite new cases seeking to overturn Obergefell, and to strike fear in some parts of the L.G.B.T.Q. community that it could happen. It won’t. But I’m certain that the pressure on the court will only grow.
There’s no neutral ground: The Supreme Court has become a prize in a war over how far the country will go to privilege religious rights over other rights, including the right not to be discriminated against. A case the court heard last month, Fulton v. City of Philadelphia, raises the question whether a Catholic social services agency under contract with the city to place children in foster homes can refuse to consider same-sex couples as foster parents despite the city’s nondiscrimination law.
For religious adherents pressing such claims, equal treatment is no longer sufficient. Special treatment is the demand. That’s clear in another Covid-related case that reached the Supreme Court this week. In mid-November, Gov. Andrew Beshear of Kentucky issued a temporary order barring in-person instruction in all public and private schools. A religious school, Danville Christian Academy, promptly won an injunction from a federal district judge.
A three-judge panel of the United States Court of Appeals for the Sixth Circuit stayed the injunction this past weekend. The court observed that because the order applied to religious and secular schools alike, it was “neutral and of general applicability,” key words that under a 1990 Supreme Court decision, Employment Division v. Smith, to foreclose a claim under the First Amendment’s Free Exercise Clause for a special religious exemption.
Claiming that “it is called by God to provide in-person instruction to its students,” the school has gone to Justice Kavanaugh, who has supervisory jurisdiction over the Sixth Circuit, asking him to vacate the stay of the injunction. The 35-page brief skips almost entirely over the fact that public schools are under the same strictures, asking instead, “Why can a 12-year-old go to the movies along with two dozen other people, but she can’t watch ‘The Greatest Story Ever Told’ with a smaller group in Bible class?” Justice Kavanaugh has told Governor Beshear to respond by Friday afternoon.
The Sixth Circuit panel’s unanimous ruling against the school was somewhat unusual because it was issued by one Democratic-appointed judge, Karen Nelson Moore, and two judges appointed by President George W. Bush, John Rogers and Helene White. Statistics compiled recently by Zalman Rothschild, a fellow at the Stanford Constitutional Law Center, show a startling partisan divide in how federal judges have approached cases involving religious objections to government-imposed limitations related to Covid-19.