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The Roberts Court Punts on Religious Liberty Again

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In yesterday’s Fulton v. City of Philadelphia decision from the Supreme Court, conservatives saw a victory in the battle over religious liberty as the nation’s highest court decided 9-0 that the City of Philadelphia could not exclude a Catholic services organization from the providing adoption services through its system. That the decision was unanimous came as something of a shock to many observers, and raised questions about the Court under Chief Justice John Roberts.

The decision, while a victory for religious liberty, is still seen as fairly narrow, as explained by RedState’s own Shipwreckedcrew:

But there was not true unanimity on the Court over the issues raised by the case.  The Chief wrote a narrow opinion faulting the language of Philadephia’s regulation prohibiting discrimination — which was the basis upon which Philadelphia disqualified CSS from participation (it discriminated against same-sex couples) — and that technical defect in the language of the City ordinance allowed the liberal justices to join his decision.

The conservatives concurred in the outcome — making it 9-0 — but wrote separate concurring opinions that would have reached more foundational constitutional questions involving the conflict between “civil rights” as they might apply to same-sex couples, and constitutional rights set forth in the First Amendment.

Conservative consensus is that the Court should have further considered the 1990 case Employment Division, Department of Human Resources of Oregon v. Smith, as it was central to this case and how the City of Philadelphia treated the Catholic services group. As Justice Alito pointed out in his concurring opinion, “In Smith, the Court abruptly pushed aside nearly 40 years of precedent and held that the First Amendment’s Free Exercise Clause tolerates any rule that categorically prohibits or commands specified conduct so long as it does not target religious practice.” In other words, Smith runs directly counter to the first promises of the First Amendment — that “Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof.”

Smith destroys the very foundation of the First Amendment by saying “Well, okay, you can abridge the free exercise of religion so

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