Mirror of Justice

A blog dedicated to the development of Catholic legal theory.
Affiliated with the Program on Church, State & Society at Notre Dame Law School.

Thursday, January 6, 2022

Christian nationalism and January 6

As we observe the 1-year anniversary of the deadly attack on the U.S. Capitol, I encourage American Christians to remember that pushing back against Christian nationalism does not require a retreat to some sort of imagined secular space — the resources for resistance are available within Christianity itself.
 
But first we have to be clear that Christian nationalism is a perversion of our faith and a threat to the rule of law. Among the heartbreaking images that linger from Jan. 6, 2021: the "Jesus Saves" banners being held by rioters entering the Capitol, right alongside the Confederate flags, nooses and Holocaust sweatshirts. The attack followed weeks of "Jericho marches," prayer meetings and rallies premised on the idea that God ordained Donald Trump to serve eight years as president, and that those who stood in the way were attempting to thwart God's will for America.
 
If we don't want the lessons from that day to be obscured by partisan talking points, we need to be clear about why Christian nationalism is dangerous and what healthy Christian political engagement looks like.
 
Andrew Whitehead and Samuel Perry provide the most comprehensive account of Christian nationalism, which they describe in Taking America Back for God as "a cultural framework that blurs distinctions between Christian identity and American identity, viewing the two as closely related and seeking to enhance and preserve their union." When we merge our identity as Christians with our identity as Americans, we invest political positions with a level of certainty and fervor traditionally reserved for matters of religious faith. Christian nationalists are no longer debating ideas about which reasonable people can disagree; they are defending Christianity against its enemies. That's a dangerous place for a democracy to be.
 
If American Christians are not happy with the voices that loudly proclaim direct knowledge of God's will for American politics (often arising on the right), and we're not ready to agree with the voices that insist faith has only a marginal role to play in our political discourse (often arising on the left), what's the path forward?
 
Christian nationalism has exemplified three characteristics that healthy Christian political engagement must avoid.
 
First, Christian faith should not be a conversation-stopper. Christians have long used religious language to advocate for particular policies, and there is nothing wrong with doing so, provided the religious language is an entry point, not the entirety of the argument. "The Bible says it, I believe it, that settles it," may be a pithy and popular bumper sticker, but it's not fertile ground for the dialogues on which our democracy depends. The rule of law requires that the lawgiver offer reasons that are rationally accessible, even if not agreeable, to all. On both sides of the political spectrum, the most effective advocates convey the public relevance of Christian values in terms that are wide open to disagreement.
 
Second, Christian faith should not be a rationale for self-righteousness. When Christians refuse to recognize the possibility that our political tribe is capable of evil, we are denying the reality of sin. The Christian nationalist narrative does not portray political opponents as fellow citizens with different ideological commitments; rather, they are enemies engaged in spiritual warfare. When outraged Christian nationalists attacked the Capitol, they may not have seriously considered the possibility that then-President Trump and his media champions were exaggerating and fabricating reasons to doubt the election's outcome. Their example is a cautionary lesson for citizens across the political spectrum. Self-righteousness distorts our perception of reality and precludes the mutual recognition of fallibility on which the give-and-take of democracy depend.
 
Third, Christian faith should not stoke fear of "the other." In contrast to the radical "love thy neighbor" teachings of Jesus, the rhetoric of Christian nationalism engenders loyalty by stoking fear. Christian nationalism is about power — to be won and wielded against external threats. Relying on fear and finger-pointing as a political weapon creates an us-vs.-them mindset. This threatens the rule of law, which aims to guarantee that all are treated fairly, that laws operate prospectively as guides to conduct, and that the application of laws does not depend on a group's popularity. By building a political movement on the scapegoating of particular groups, Christian nationalists' rhetoric creates tension with these guarantees.
 
Christian nationalists are espousing a version of the faith that has profound and dangerous consequences for the rule of law. We cannot defend the rule of law by relying solely on arguments that fail to address the foundational claims from which threats emerge. Christian nationalism is one such threat, and we need to respond — as Americans and, perhaps more importantly, as Christians.
 
(A version of this appears in the Minneapolis Star-Tribune and is based on the chapter I contributed to "Beyond Imagination?: The January 6 Insurrection," a new book published by West Academic.)

January 6, 2022 in Vischer, Rob | Permalink

Monday, November 1, 2021

David Link and the meaning of vocation

Growing up, I thought my career choice – a singular choice, made only once – was a direct and public reflection of my relationship with God.  If my faith in God was strong enough, it meant I should probably be a missionary or a pastor.  One problem: I knew enough missionaries and pastors to know that I didn’t want to be either one.  I contemplated attending graduate school for theology rather than going to law school, as if that might be closer to a true “Christian” vocation.  When I moved from legal practice into the academy, I started writing about the intersection of law and religion.  Not quite ministry, but close enough to count in God’s eyes? 

Obviously, it’s taken a while for me to understand that vocation is more about becoming the person God has called me to be, less about my career choice.  Or as Thomas Merton put it, “discovering vocation does not mean scrambling toward some prize just beyond my reach but accepting the treasure of true self I already possess.”

Which brings me to David Link, who died on Thursday.  He was a tax attorney who left private practice to teach, eventually serving as Notre Dame Law School’s dean for nearly 25 years.  He left Notre Dame to become the founding dean of St. Thomas Law, helping launch the school.  Soon after Dave left St. Thomas, his wife Barbara passed away, and he went to seminary, becoming a Catholic priest at age 71.  Fr. Link devoted the rest of his days to prison ministry, working primarily at a maximum-security prison in which most of the inmates were convicted of murder.

I wonder, if we could ask David Link to describe his vocation while he was sitting in his office at Winston & Strawn parsing new tax regulations, then pose the same question to Dean Link as he welcomed the inaugural JD class to St. Thomas, and to Fr. Link as he counseled an inmate serving a life sentence, would his answers have changed?  Did his vocation shift at each new step of his career, or did his vocation actually remain constant?  His perception of the ways his gifts could best help meet the world’s needs evolved over fifty years, no doubt.  But his defining vocation was not tax attorney, law school dean, or even Catholic priest.  His defining vocation, I suspect, was his heeding of the prophet Micah’s call “to act justly and to love mercy and to walk humbly with your God.”

As we observe All Saints' Day, I encourage us to reflect on vocation, both in our own lives and in the lives of our students.  What difference might it make if we view vocation less as a one-time career choice and more as a commitment to being the person God has created us to be?

Rest in peace, David Link – may your memory be a blessing.

November 1, 2021 in Vischer, Rob | Permalink

Sunday, October 10, 2021

Indigenous Peoples' Day

I don’t have family roots in Minnesota, with one exception: during the 1940s, my grandfather was the manager of the Firestone store at 1107 Harmon Place in Minneapolis – i.e., the future site of the law school where I serve as dean. That very modest historical connection to the land where I work today can be a source of encouragement during hard days. Whatever I’m dealing with, it’s helpful to imagine the perseverance of my grandfather, plucked from Ohio to a strange new city and tasked with selling tires in the face of wartime rubber rationing.
 
Of course, in the long history of human beings living and working here, my roots through that Firestone shop are very shallow. This land was not a significant part of my story, or of my family’s story. Our language, religious practices, and way of life stayed intact when my grandfather was transferred to another store in another state.
 
Tomorrow is Indigenous Peoples’ Day, when we celebrate and reflect on the many Indigenous communities and cultures that have shaped our nation. One way we do that is by caring about – and being honest about – our history, including the history of the land where we live and work today. St. Thomas Law is on what was Dakota land until that land was ceded to the United States through the treaty of 1851. That treaty called for the payment to the Dakota of what amounted to 12 cents per acre. Treaty negotiations were driven by the American Fur Company, which had been providing supplies to the Dakota in exchange for fur. As the lands were overhunted and European demand for fur dropped, the system collapsed and the Dakota were left owing huge debts to American Fur. Debt payments (inflated by the company) were taken out of the land proceeds before anything was given to the tribe. Essentially, the fur traders were bailed out by the U.S. government, the U.S. government got 24 million acres of land, and the Dakota got almost nothing. This was all made possible by the strategist behind the arrangements: Henry Sibley, who was a partner and agent of the American Fur Company, the future governor of Minnesota, and a lawyer. We need to know these stories.
 
Like just about everything else in our country today, the choice to celebrate Indigenous Peoples’ Day rather than Columbus Day is itself a political minefield. It’s worth pointing out, though, that even the older holiday’s creation emerges from injustice. As Italian immigration to the United States increased in the late 1800s, so did persecution of the new arrivals. In 1891, anti-Italian sentiment boiled over in New Orleans, and a mob broke into the jail, where they beat, shot, and hanged 11 Italian-American prisoners. The Italian government called for reparations and cut off diplomatic relations. In an attempt to appease Italy, in 1892 President Benjamin Harrison proclaimed a “Discovery Day,” recognizing Columbus as “the pioneer of progress and enlightenment.”
 

We are stewards of the rule of law, and that means we also have to be honest and unflinching students of our history.  Under the gaze of previous generations, what does it mean – what should it mean – to be called to help form the next generation of lawyers and leaders?  Are we being faithful to the witness of those who came before us?

October 10, 2021 in Vischer, Rob | Permalink

Tuesday, October 5, 2021

New issue of Journal of Law & Religion

A new issue of the Journal of Law & Religion has been published, and it's available for free (here) until November 15.  The issue features an article from Nate Oman and book review contributions from Frank Ravitch, Cathy Kaveny, Robin Fretwell Wilson, Perry Dane, and many others.  Definitely worth checking out. 

October 5, 2021 in Vischer, Rob | Permalink

Sunday, October 3, 2021

Our deepening polarization

On Thursday, the University of Virginia released the results of a survey that offers important but jarring insights. Among the findings:
 
  • 41% of Biden voters and 52% of Trump voters at least somewhat agree that red states / blue states should secede from the union to form their own separate country.
  • 46% of Biden voters and 44% of Trump voters at least somewhat agree that it would be better for America if whoever is President could take needed actions without being constrained by Congress or the courts.
  • 62% of Biden voters and 82% of Trump voters at least somewhat agree that “our country needs a powerful leader in order to destroy the radical and immoral currents prevailing in society today.”
  • 56% of Biden voters at least somewhat agree that there’s no real difference between Republicans and Fascists, and 76% of Trump voters at least somewhat agree that there’s no real difference between Democrats and Socialists.
  • 75% of Biden voters and 78% of Trump voters at least somewhat agree that Americans who strongly support the opposing party have become “a clear and present danger to the American way of life.”
  • 80% of Biden voters and 84% of Trump voters at least somewhat agree that elected officials from the opposing party are a “clear and present danger to American democracy.”
These numbers should be deeply concerning. The past two years have underscored an unpleasant reality: civilization is thin. The rule of law is a project that each generation must choose to embrace, and that project is dependent on trust. If those who disagree with me politically are a clear and present danger to my way of life, an ongoing commitment to build relationships across difference seems quaintly out of touch at best. And if my opponents are not just wrong, but evil, then the emerging bipartisan trend of protesting at the homes of judges and elected officials is not a cause for worry, but a necessary example of our obligation to oppose existential threats to our democracy by any means necessary.
 
If we prioritize debating contested issues in ways that reflect mutual respect, we stand accused of dangerously elevating form over substance. After all, we’re not dealing with the Democrats / Republicans of past eras – we’re dealing with Socialists / Fascists! We learned our lesson about dealing with these people in The Cold War / World War II: brute force is the only path forward. Once we’ve eliminated the existential threat, we can get back to building relationships across difference.
 
For those of us who are law professors, with this level of mutual antipathy so prevalent in American society, how are we supposed to go about preparing our students to flourish? It’s not that all of our students fall neatly into these warring camps – many do not. But they’re all being formed against the backdrop of these warring camps. Many of our students have no interest signing up for an all-out red-versus-blue battle, but they know they might easily be drawn into the daily skirmishes if they say something that can signal membership in the opposing camp, whether they intend to or not. Their understandable response is to disengage, pull back, and remain silent about issues that matter greatly to our shared future. This withdrawal precludes the opportunity for deeper relationships and new perspectives.
 
I spend a lot of time talking about these issues in my role as a dean, not only because I want my law school to be a strong, welcoming, and diverse community in which our students can flourish, but because our willingness or unwillingness to build relationships with those whose ideas we oppose is a powerful harbinger of what is to come for our world.
 
The new poll results should not be a discouragement, but a reminder: we are not audience members, passively observing the state of our country. We are all active participants, and we need to listen, learn, and lean in. We must model what it means to disagree vigorously within relationship, not as a precondition to relationship. Will these individual efforts, standing alone, heal the fracturing that has accelerated dramatically in our nation in recent years? Of course not, so let’s call it what it is: a good place to start.

October 3, 2021 in Vischer, Rob | Permalink

Wednesday, September 15, 2021

Initiative on Restorative Justice & Healing at St. Thomas Law

St. Thomas Law opened its doors twenty years ago last month, and one way we are celebrating is by redoubling our commitment to live out our distinctive Catholic mission in ways that meet the needs of our society.  Last week, we launched the Initiative on Restorative Justice & Healing, a coordinated effort to leverage our expertise and resources to help restore relationships fractured by injustice, with a particular focus on racial injustice, sexual abuse by clergy and institutional failures within the Catholic church, and societal polarization.  Directed by my faculty colleague Fr. Dan Griffith, this project is a great example of our mission in action, demonstrating the importance of integrating legal acumen with empathy, concern for the whole person, and the transformative power of human connection.  Fr. Griffith and Professor Hank Shea, a former federal prosecutor, have been co-teaching a course on restorative justice for several years, and we will look to expand those efforts to include a hands-on restorative justice practicum course, community partnerships, externships, lectures, conferences, training sessions, and broader visibility into ways that restorative justice practices can help bring healing to our communities. 

With an understanding of justice as right relationships, we believe that this work can be a core component of Catholic legal education. 

This video (created by Hunter Johnson) is a helpful introduction to the role that restorative justice has played in the resolution of clergy sexual abuse cases in our Archdiocese, and this video of last week's launch event provides a preview of the Initiative's potential impact.  Restorative justice pioneer and former Wisconsin Supreme Court Justice Janine Geske will chair the Initiative's advisory board.

September 15, 2021 in Vischer, Rob | Permalink

Friday, July 2, 2021

Bill Cosby's release and the rule of law

As we begin the 4th of July weekend, we should not celebrate the fact that serial rapist Bill Cosby has been released from prison. His freedom is yet another trauma inflicted on his victims. We should, however, be grateful that we live in a country where the rule of law is followed, even when it results in wrongdoers going free.

Back in 2005, Montgomery County District Attorney Bruce Castor learned that Andrea Constand reported that Bill Cosby had sexually assaulted her in 2004. After investigating, Castor concluded that, unless Cosby confessed, “there was insufficient credible and admissible evidence upon which any charge against [him] . . . could be proven beyond a reasonable doubt.” Castor decided that the Commonwealth of Pennsylvania would refrain from prosecuting Cosby, thus allowing him to be forced to testify in a civil suit brought by Constand.

This decision meant that the Fifth Amendment’s privilege against self-incrimination would not be available to Cosby – i.e., there was no possibility of criminal charges being brought based on Constand’s allegations. So Cosby provided four sworn depositions in Constand’s civil suit – not once invoking the Fifth Amendment – and ended up settling the suit for $3.38 million.

After the records of the civil suit were released in 2015, Castor’s successor as District Attorney reopened the criminal investigation of the Constand case despite being warned by Castor that “I intentionally and specifically bound the Commonwealth that there would be no state prosecution of Cosby in order to remove from him the ability to claim his Fifth Amendment protection against self-incrimination, thus forcing him to sit for a deposition under oath.” The criminal case nevertheless proceeded, and the deposition testimony Cosby provided in the earlier civil suit was crucial to the prosecution.

In this week's ruling, the Pennsylvania Supreme Court observed that courts are obligated “to hold prosecutors to their word, to enforce promises, to ensure that defendants’ decisions are made with a full understanding of the circumstances, and to prevent fraudulent inducements of waivers of one or more constitutional rights.” Society “holds a strong interest in the prosecution of crimes,” but “no such interest, however important, ever can eclipse society’s interest in ensuring that the constitutional rights of the people are vindicated.” Accordingly, the Court ruled, Cosby’s convictions and sentence must be vacated.

My favorite explanation of why the rule of law matters is offered by Robert Bolt in “A Man for All Seasons” when he depicts an exchange between Sir Thomas More and a young idealist, William Roper, about giving the accused the benefit of the law:

William Roper: “So, now you give the Devil the benefit of law!"

Sir Thomas More: “Yes! What would you do? Cut a great road through the law to get after the Devil?"

 

William Roper: “Yes, I'd cut down every law in England to do that!”

 

Sir Thomas More: “Oh? And when the last law was down, and the Devil turned 'round on you, where would you hide, Roper, the laws all being flat? This country is planted thick with laws, from coast to coast, Man's laws, not God's! And if you cut them down, and you're just the man to do it, do you really think you could stand upright in the winds that would blow then? Yes, I'd give the Devil benefit of law, for my own safety's sake!”

American courts must take seriously the rights extended by our Constitution, even when – especially when – the person seeking their protection deserves no public sympathy or solace. I’m not glad that Bill Cosby is free, but I’m glad I live in a country where judges decide his freedom based on what the law requires, not on what they think he – or any of us – deserve.

July 2, 2021 in Vischer, Rob | Permalink

Monday, June 28, 2021

Ron DeSantis and the GOP's (literal) demonization of the Left

I've written a new op-ed for Religion News Service:

Earlier this month, Florida Governor Ron DeSantis — viewed as a leading candidate for the 2024 GOP presidential nomination — received several standing ovations during his speech to the Faith and Freedom Coalition’s “Road to Majority” conference. He told the audience that “you got to put on the full armor of God” to “take a stand against the left’s schemes,” for “you will face flaming arrows but take up the shield of faith and fight on.”

This was a reference to a passage in the New Testament in which the Apostle Paul implored the Ephesians to:

“Put on the full armor of God, so that you can take your stand against the devil’s schemes.  For our struggle is not against flesh and blood, but against the rulers, against the authorities, against the powers of this dark world and against the spiritual forces of evil in the heavenly realms. Therefore, put on the full armor of God, so that when the day of evil comes, you may be able to stand your ground, and after you have done everything, to stand. … (T)ake up the shield of faith, with which you can extinguish all the flaming arrows of the evil one.”

The dubious interpretive gymnastics required to apply Paul’s spiritual admonition to today’s hyperpartisan political landscape is just the latest example of Republican politicians aggressively merging their political and Christian identities. This isn’t particularly new: America’s politicians have always exploited our faith for votes. What’s different is that the tone of the political discourse has shifted as the religious landscape has changed in some pretty significant ways. 

The first change to keep in mind is that American Christianity is declining. In 2019, 65% of American adults described themselves as Christians, down 12 percentage points over the previous decade. With fewer Christians to offend and more non-Christians in the marketplace, media providers, corporations and universities are staking out positions on “culture war” issues that are in tension with traditional Christian beliefs.

This phenomenon contributes to a perception among many American Christians that they are a persecuted minority surrounded by an increasingly hostile culture. Most white evangelicals today believe that Christians are more likely to face discrimination in the United States than Muslims. If Christians believe they face an existential threat, they will tend to support candidates whose rhetoric matches the gravity of the moment.  

The second change relates to the shift in party coalitions. Today, according to Pew Research, about half of Democratic voters identify as Christian, down from 73% as recently as 2008. The percentage of Democratic voters who are religiously unaffiliated has doubled during that time, from 18% to 38%. The change among Republicans has been more modest: Christians are 79% of Republican voters, down from 87% in 2008. Only 15% of Republican voters are religiously unaffiliated, up from 9% in 2008. 

This shift means that Republican politicians have an incentive to underscore the religious beliefs that most Republican voters hold in common and that many Democratic voters do not. Ezra Klein, in his 2020 book “Why We’re Polarized,” explains that group conflict today is not primarily motivated “by zero-sum collisions over resources or power,” but by the psychological desire to increase difference between the in group and the out group.

The result, according to University of Maryland professor Lilliana Mason in her 2018 book “Uncivil Agreement,” is our current predicament in which “partisan identities fall into alignment with other social identities, stoking our intolerance of each other to levels that are unsupported by our degrees of political disagreement.”

So, it may be in the short-term self-interest of Gov. DeSantis and other GOP presidential prospects to describe policy disagreements with language traditionally reserved for spiritual battles against demonic forces. But that does not mean that such rhetoric is anything but toxic, for both democracy and the public witness of Christians.

Besides portraying the Gospel itself as a partisan proposition, this language ratchets up the perceived stakes of our debates: our political opponents are not merely separated by ideology; they are enemies engaged in spiritual warfare. 

Further, such rhetoric quickly leads to a spirit of self-righteousness. If those who reject our political views are demonic — as Eric Metaxas and Franklin Graham suggested in a 2020 interview regarding opposition to President Trump, for example — then of course we enjoy the satisfaction of knowing that God is on our side. If we refuse to recognize the possibility that our political tribe is just as capable of evil as the other side is, we are denying the reality of sin.

That’s a theological problem, but it’s also a political one. Self-righteousness obscures the mutual fallibility on which the give-and-take of democracy depends. If our tribe is on God’s side and our opponents are on Satan’s, why would we ever consider compromise?

Pushing back against this rhetoric does not require a retreat to some sort of imagined secular space — the resources for resistance are available within Christianity itself.

Christians have long used religious language to advocate for particular policies, and there is nothing wrong with doing so provided that the religious language is an entry point, not the entirety of the argument.

The rule of law requires that the lawgiver offer reasons that are rationally accessible, even if not agreeable, to all. On both sides of the political spectrum, the most effective advocates convey the public relevance of Christian values in terms that are wide open to disagreement.  

In his 1984 State of the Union address, President Reagan explained: “We must be cautious in claiming that God is on our side, but I think it’s all right to keep asking if we’re on his side.” Though the demographics of the American electorate have changed over the ensuing decades, the underlying principle has not: When we bring our faith into politics, a little humility goes a long way.

June 28, 2021 in Vischer, Rob | Permalink

Closure on the 2020 election

In the past week, three news stories that may have escaped widespread attention are nevertheless crucial to bringing closure to the 2020 presidential election.

First, a Michigan senate committee led by Republicans issued a 35-page report on its investigation of claims made regarding election improprieties and irregularities. The committee found “no evidence of widespread or systematic fraud in Michigan’s prosecution of the 2020 election.” Regarding Antrim County (the county at the center of many claims), the committee found that “all compelling theories that sprang forth from the rumors surrounding Antrim County are diminished so significantly as for it to be a complete waste of time to consider them further.” In conclusion, the committee urged citizens to “be confident the results represent the true results of the ballots cast by the people of Michigan,” and to “use a critical eye and ear toward those who have pushed demonstrably false theories for their own personal gain.”

Second, a New York court suspended Rudy Giuliani from practicing law based on falsehoods he knowingly spread while representing President Trump. Giuliani’s defense was not that his statements were true, but that he did not know they were false at the time he made them. For example, he claimed repeatedly that Pennsylvania sent out 1.8 million absentee ballots before the election, but nearly 2.6 million absentee ballots came in during the election. In reality, 3.08 million absentee ballots were sent out by Pennsylvania. In his disciplinary proceeding, Giuliani said that he relied on an unidentified member of his team who took the information from the Pennsylvania website, which allegedly posted the incorrect information. The court observed that there was no evidence to support Giuliani’s explanation, no screen shot of the website with the mistaken information, no affidavit or other information from the unidentified team member. Giuliani did not bother to contest the court’s observation that his earlier statements were false. There were similar inquiries about his other statements regarding election fraud and irregularities. No one disputed that his statements were false; the only dispute was whether he knew they were false when he made them.

Third, former Attorney General William Barr, one of President Trump’s core loyalists, told reporter Jonathan Karl, regarding the stolen election claims, “It was all bullsh*t.”

Just as President Trump was legitimately elected in 2016, President Biden was legitimately elected in 2020. You may love him, you may hate him, or you may be somewhere in between. But let’s ground our criticisms in reality. We already have plenty of issues to disagree about. The outcome of the 2020 election should not be one of them.

June 28, 2021 in Vischer, Rob | Permalink

Thursday, June 17, 2021

Fulton v. City of Philadelphia: the rule of law persists in an age of political tribalism

As the world waited for the Supreme Court’s ruling in Fulton v. City of Philadelphia, the stage was set for another headline-grabbing battle in our never-ending culture wars: the religious liberty of a Catholic foster care agency versus a municipal government committed to ending discrimination against same-sex couples. This morning, as advocates on both sides were ready to crank up the outrage-fueled fundraising machines, the Court issued its ruling in favor of the Catholic agency. And remarkably, it was unanimous, demonstrating once again that the rule of law does not stick to our increasingly polarized political scripts. Throughout this era of tumult and tribalism, our judiciary reminds us that the law is not just a set of political preferences dressed up with fancy words. Principles and precedent continue to matter.
 
So how did this case end up as a unanimous ruling? The dispute arose from Philadelphia’s decision not to renew its contract with Catholic Social Services (CSS) to place children with foster parents unless CSS agreed to include same-sex couples. The City argued that the refusal to include same-sex couples violated a non-discrimination provision in the agency’s contract with the City, as well as the non-discrimination requirements of a city ordinance.
In an opinion joined by all eight of his colleagues, Chief Justice Roberts observed that CSS “does not object to certifying gay or lesbian individuals as single foster parents or to placing gay and lesbian children,” and “[n]o same-sex couple has ever sought certification from CSS.” If a same-sex couple did seek to be certified, “CSS would direct the couple to one of more than 20 other agencies in the City, all of which currently certify same-sex couples.” (In other words, there is no shortage of opportunities in Philadelphia for same-sex couples to serve as foster parents.)
 
The Court held that the City’s refusal to renew CSS’s foster care contract violated the First Amendment’s Free Exercise Clause, recognizing at the outset that “the City’s actions have burdened CSS’s religious exercise by putting it to the choice of curtailing its mission or approving relationships inconsistent with its beliefs.”
 
That wasn’t the end of the analysis, though, because of a 1990 Supreme Court ruling that loomed over this case: Employment Division v. Smith. In Smith, the Court held that neutral and generally applicable laws do not violate the Free Exercise Clause even if they negatively impact religious practices. In Fulton, the City argued that its prohibition on sexual orientation discrimination was both neutral and generally applicable, and as such, CSS’s Free Exercise claim must fail.
 
The Court disagreed because the City’s non-discrimination requirement permitted a party to seek an exemption, and “A law is not generally applicable if it invites the government to consider the particular reasons for a person’s conduct by providing a mechanism for individualized exemptions.”
 
Once a law that burdens religious exercise is deemed not generally applicable, it falls outside the scope of Smith and is thus subject to strict scrutiny. This means that the law can only survive if it advances government interests of the highest order and is narrowly tailored to achieve those interests. Put more simply, “so long as the government can achieve its interests in a manner that does not burden religion, it must do so.”
 
The Court acknowledged that important interests are at stake in the non-discrimination requirement, but found that the City failed to show how granting CSS an exemption would jeopardize those interests: “If anything, including CSS in the program seems likely to increase, not reduce, the number of available foster parents.”
 
So every Justice agreed that CSS should prevail. But three Justices – Alito, Thomas, and Gorsuch – were ready to go further and overturn Smith, pointing out in a concurring opinion that the rule permitting “neutral and generally applicable” laws to withstand constitutional scrutiny, no matter their impact on religious exercise, is deeply problematic. For example, under Smith, the Volstead Act implementing Prohibition would have been constitutional even if it contained no exception for the sacramental wine necessary for Catholic masses. Or a ban on infant circumcision would be permissible, even if it applied to prohibit important Jewish and Muslim practices.
 
Because the Court avoided Smith by focusing on the possibility of an exemption in Philadelphia’s non-discrimination requirement, the concurrence warned that today’s decision “might as well be written on the dissolving papers sold in magic shops” because, “if the City wants to get around today’s decision, it can simply eliminate the never-used exemption power.”
 
So even in a unanimous ruling, important disagreements lurk. But even those disagreements don’t align easily with our political tribalism. The author of Smith against whom conservative stalwarts Alito, Thomas, and Gorsuch were railing? Conservative judicial hero Antonin Scalia. The rule of law does not lend itself to simplistic predictions based on which President appointed which judge. (In today’s other noteworthy ruling, Trump appointees Barrett and Kavanaugh joined five of their colleagues in upholding Obamacare against a challenge brought by Republican-led states.)
 
The sorting that has occurred between American conservatives and liberals maintains an ideological core, but it has morphed into something broader and deeper than ideology. In his book "Why We’re Polarized," Ezra Klein points out that the two major political parties today “are sharply split across racial, religious, geographic, cultural, and psychological lines,” and that these identities “are fusing together, stacking atop one another.” Further, since “these mega-identities stretch across so many aspects of our society, they are constantly being activated, and that means they are constantly being reinforced.” In other words, a conflict between religious liberty and LGBT rights aligns with the more fundamental conflict between our stacked social identities. We don’t need to choose a side; we already know which side we’re on based on where we live, what cable news we watch, what car or truck we drive, where (and if) we go to church, even where we shop.
 
The rule of law reminds us that it should not and need not be that simple. I’m confident that Justice Sotomayor and Justice Thomas, for example, do not run in the same political circles or derive their identities or sense of belonging from the same sources. And yet they can step back from the noise, examine the facts of a situation, apply sound principles not of their own creation, and agree on an outcome. Not every case will be unanimous, and a 5-4 ruling may emerge later this month. But members of the Supreme Court have not given up hope that they can still reason together to resolve deeply contested issues. And if they can do that under the white-hot national spotlight, so can the rest of us.

June 17, 2021 in Vischer, Rob | Permalink