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Orthodox activists say Supreme Court decision in LGBT adoption case could have gone further

Activists had hoped the Court would overturn the 1990 Employment Division v. Smith decision

Kjetil Ree

Supreme Court of the United States

Orthodox Jewish activists are largely praising the Supreme Court’s unanimous decision on Thursday to side with a Catholic adoption agency in Fulton v. City of Philadelphia — a showdown between the adoption agency and the city over religious and LGBTQ rights — but are disappointed the Court did not go further to overturn a previous religious liberty ruling.

In Fulton, the High Court ruled 9-0 that Philadelphia could not refuse to contract with a Catholic adoption agency that will not consider same-sex couples as foster parents. In the majority opinion, Chief Justice John Roberts wrote that the city’s policy violated the First Amendment.

Orthodox Jewish activists cheered the decision as an affirmation of the primacy of First Amendment rights.

“It was a very important decision, particularly because it was unanimous. There’s an ongoing debate over religious liberty, and [if it is] really — as we’ve long seen it, and many have long seen it… literally the first freedom that’s guaranteed in the Bill of Rights,” Nathan Diament, the director of the Orthodox Union’s Advocacy Center, told Jewish Insider.

“There are some others that have other civil rights that they want to give primacy to and they want to shrink the protections for religious liberty,” he continued. “This is the second time in a decade or so in which advocates, frankly from the left, came into the Supreme Court to try to shrink religious liberty, and the Supreme Court, left, right and center, responded unanimously and said, ‘No, we’re not going to shrink religious liberty.’”

Rabbi Abba Cohen, Agudath Israel of America’s vice president for government affairs, called the decision “wonderful” and “just another step in clarifying… how do you reconcile religious rights versus gay rights.”

“The Court decided — and remember, this is a unanimous Court — that religious freedom remains a fundamental freedom,” he added. “The Court is teaching us that there are competing interests. There are competing forms of discrimination.”

While the Court’s ruling was unanimous, Justice Samuel Alito, in a concurring opinion joined by Justices Clarence Thomas and Neal Gorsuch, argued that the Court should overturn the 1990 case Employment Division v. Smith, which decided that states can prohibit religious practices if the law blocking those practices applies universally and is not specifically intended to block said religious practice.

In Smith, the Court ruled that the state of Oregon could deny unemployment benefits to two people fired for possession of peyote, which they said they used as part of a Native American religious ritual, since the state had a blanket ban on peyote not aimed at a particular religion. In Fulton, the Court determined Philadelphia’s regulations were not “generally applicable,” as was the peyote ban.

Alito argued that the Smith decision could permit a state to ban kosher slaughter by making it illegal to slaughter a conscious animal or ban the circumcision of infants, among other similar restrictions.

Nathan Lewin, a constitutional lawyer who filed a brief in Fulton for the National Jewish Commission on Law and Public Affairs, which was joined by Agudath Israel and other Jewish groups, said he was surprised and disappointed that Justices Amy Coney Barrett and Brett Kavanagh did not join Alito’s concurrence and overturn Smith.

Lewin speculated that Barrett did not join Alito because she was a clerk for Justice Antonin Scalia, who authored the Smith opinion. He added that he sees Roberts’ opinion as somewhat contrived, with the specific goal of avoiding overruling the Smith decision.

“They are afraid that if they say something is overruled that everybody is going to say, ‘Oh, you’re ready to overrule Roe v. Wade,’” he said. “They’re afraid to overrule anything now… They look for ways out, some of which are totally untenable. What Roberts [ginned] up in this case is totally untenable.”

Lewin, who was friends with Scalia, added that Scalia had indicated to him late in his life that he had come to regret his decision in Smith.

Cohen said he was also disappointed by the decision not to overturn Smith, but said he believes the Fulton decision sets up a potential future reversal of that ruling.

“A majority of the Court seems either to want to scrap the Smith decision or has indicated that they’re uncomfortable with it, but they’re not quite sure what they want to replace it with,” he said. “All the signs indicate that Smith as we know it has a short time left in terms of being the law of the land.”

Cohen added that he does not believe the contingencies that Alito proposes in his brief, such as bans on kosher slaughter or circumcision, are imminent concerns, but said “the very fact there is the potential for infringement of such fundamental Jewish religious practices and many others is unsettling and of concern, and the possibility of those things happening should not be part of our law.”

OU joined a separate amicus brief in Fulton calling for the Court to overturn Smith.

“We’ll have to deal with that another day,” Diament said. “It does not diminish from the significance of this unanimous ruling and what it means.”

Not all Jewish groups are supporting this decision, however.

National Council of Jewish Women CEO Sheila Katz said in a statement that the Fulton decision is “a devastating loss for Philadelphia children in foster care, who are harmed when the religious beliefs of government-funded agencies override the best interests of the children.”

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