An Eccentric Tradition: The Paradox of “Western Values” Peter Harrison. 1 17 2018. ABC Religion & Ethics. https://www.abc.net.au/religion/an-eccentric-tradition-the-paradox-of-western-values/10095044 Did Christianity Create Liberalism? Samuel Moyn. 2 9 2015. Boston Review. https://bostonreview.net/books-ideas/samuel-moyn-larry-siedentop-christianity-liberalism-history The Great Subversion: The Scandalous Origins of Human Rights Ronald Osborn. 2015.
“2020 was the first year on record that the majority of Americans said they did not belong to a church, synagogue, or mosque; from the 1930s to the turn of the 21st century, around 70 percent of Americans did belong to one. Americans, particularly younger ones, increasingly report that they have no religious preference, or as some have put it, it’s “the rise of the nones.” But perhaps “none” doesn’t quite tell the whole story.”
“Fulton v. City of Philadelphia, a case involving a Catholic group that objects to placing foster children with same-sex couples, was widely expected to be a sweeping victory for the religious right, and a correspondingly significant defeat for LGBTQ rights. Instead, the Court’s opinion dodges nearly all of the important issues raised by the case.
It’s still a small win for religious conservatives and a similarly small loss for the LGBTQ community in Philadelphia. But the Court’s decision is unlikely to have many implications outside of that city. And it hits pause on a fight to overrule a landmark Supreme Court decision from over three decades ago — most likely because, as Justice Amy Coney Barrett notes in a concurring opinion, several of the justices aren’t sure what to do next if that decision is overruled.”
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“The plaintiffs in Fulton, moreover, also asked the Supreme Court to overrule its seminal decision in Employment Division v. Smith (1990), which held that religious objectors must follow “neutral law[s] of general applicability.” Under Smith, a religious objector typically is bound by a state or local law so long as it applies with equal force to non-religious actors — so, if secular organizations are forbidden from discriminating, the same rule will generally apply to religious organizations.
But neither of these important questions was resolved in Fulton. While Justice Samuel Alito penned a lengthy opinion calling for Smith to be overruled, that opinion was joined by only Justices Clarence Thomas and Neil Gorsuch.
The remainder of the Court joined a much narrower majority opinion by Chief Justice John Roberts, which rules in favor of CSS, but on grounds that are unlikely to have many implications for future cases.”
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“this argument relies solely on the text of Philadelphia’s particular ordinance.”
“Compared to the U.S. population overall, nonreligious Americans are younger and more Democratic-leaning. But the number of Americans who aren’t religious has surged in part because people in lots of demographic groups are disengaging from religion — many nones don’t fit that young, liberal stereotype. The average age of a none is 43 (so plenty are older than that). About one-third of nones (32 percent) are people of color. More than a quarter of nones voted for Trump in 2020. And about 70 percent don’t have a four-year college degree.”
“As the Court held in Employment Division v. Smith (1990), religious objectors must follow “neutral law[s] of general applicability.”
Ever since Justice Amy Coney Barrett joined the Court last fall, however, the Supreme Court has been rapidly dismantling Smith…the Court fired a bullet into Smith’s heart. It ruled that people of faith who want to gather in relatively large groups in someone’s home must be allowed to do so, despite the fact that California limits all in-home gatherings to just three households.
Although the Court’s new 5-4 decision in Tandon v. Newsom doesn’t explicitly overrule Smith, the decision makes it so easy for many religious objectors to refuse to comply with the law that Smith is basically a dead letter.
The Court’s new majority has accomplished what amounts to a revolution in its approach to religion and the law, entirely through cases brought by churches and other religious actors seeking exemptions from public health rules intended to slow the spread of Covid-19.
The Court is serious about giving religious conservatives broad immunity from the law — so serious, in fact, that it is literally willing to endanger people’s lives in order to achieve this goal.”
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““California treats some comparable secular activities more favorably than at-home religious exercise,” the majority opinion in Tandon claims, “permitting hair salons, retail stores, personal care services, movie theaters, private suites at sporting events and concerts, and indoor restaurants to bring together more than three households at a time.
As Justice Kagan explains in her dissent, there are three very good reasons why a state might treat these secular activities differently than a gathering in people’s homes. First of all, “when people gather in social settings, their interactions are likely to be longer than they would be in a commercial setting,” and the people at social gatherings are “more likely to be involved in prolonged conversations.”
Additionally, “private houses are typically smaller and less ventilated than commercial establishments,” and “social distancing and mask-wearing are less likely in private settings and enforcement is more difficult.”
But, ultimately, none of these distinctions mattered to the Court’s majority. The practical impact of Tandon is that, so long as many religious objectors can cite any secular activity that is treated differently than a religious activity — no matter how distinct those two activities may be — this Supreme Court is very likely to grant the objector an exemption.
Tandon is not an especially surprising decision — the Court reached a similar conclusion last November in Roman Catholic Diocese of Brooklyn v. Cuomo, a decision that I described at the time as a “revolutionary victory” for religious conservatives.”