Thursday, November 5, 2020

Noteworthy moments from the oral argument in Fulton v. City of Philadelphia

I listened to the oral argument from the Fulton case this week, and two moments stand out.

The second was when an attorney arguing against religious freedom said, “I don't think there's any way to draw a line between what the government can and can't take over” (pp. 98-99 of the oral argument transcript). This reflects a lack of understanding of the purposes of government.

The first was when Justice Sotomayor asked, “Counsel, I've always thought that a compelling state interest that motivated our holdings in racial discrimination cases was not merely that race was important but that the burden on the people who are rejected because of race is an interest that the state could seek to protect, that a rejection on the basis of race or any protected category creates a stigma on that person and that it's a compelling state interest for the state to have an anti-discrimination law on the basis of protected classes” (p. 42).

The state is taking action on the basis not just of protected categories, but against hurt feelings among those categories. This is an especially dangerous shift. The state is no longer just punishing the person for their discrimination, but they are exacting punishment for discrimination on the basis of how discrimination was perceived. This legal doctrine puts others, the offended party, in control of how the state punishes those who offended the aggrieved party as if the offense was still occurring even after it ceased. Inflicting stigma, intentionally or not, becomes an invitation for litigation.

Follow the consequences of these arguments, and the government is free to take over whatever it wants and punish anyone for not going along if someone else complains about being burdened with stigma.

The oral argument could have used some more information about the history of adoption, specifically the authority under which it has operated over the years. One side argued that a private entity has been doing this work for two centuries. The other side argued adoption is now “the City's own program” and the children are “its own wards of the state.” There were a few moments that got close to bringing that information to light, but time was short.

Another noteworthy moment was when an attorney argued, “CSS's position would also imply, for example, that police officers could decline on religious grounds to enforce particular laws, prison guards could insist on evangelizing to inmates” (pp. 89-90). What's wrong with that? Why shouldn't a Christian be free to talk about his beliefs just because he works for the government? Would that allow Moslems to talk about their beliefs as well? Yes. Truth is truth, and people should be free to persuade and make their case. Evangelism isn't proselytizing. “He who has ears to hear, let him hear.” The more government takes over, the bigger this issue gets.

(Side note: It would be interesting to explore how that principle would compare to private sector employment. Should private employers be forced to retain employees who spoke to others from a theological standpoint with which they disagreed? Would it make a difference if those conversations were with people in or outside the organization? Would a formal clarification of speaking on behalf of a company or not make a difference? I would say employers should not be compelled to countenance speech they believe counter to their corporate values or personal beliefs for the simple reason there is diversity, not a monopoly, of private employers—unlike government. If one employer does not give enough freedom for an employee's preference, perhaps another would. If this gets rare with larger employers, other techniques for encouraging freedom may be available. If a “corporate equality index” can push companies to adopt certain policies, a similar “corporate freedom index” could also push them to adopt free speech policies for employees, too.)

Back to the case at hand, why not allow there to be a variety of adoption agencies with all kinds of specialties of people they do and don't want to encourage to adopt children? What's the point of having so many different agencies if they're all required to be identical according to the state's mandates?

One bright spot from the oral argument was when an attorney arguing against religious freedom argued that “the government somehow monopolizing a private care system, a healthcare system or hospital system… would raise any number of constitutional problems.” Perhaps there is still hope for staving off a government take-over of the entire health care system as “Medicare for All” would do.

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