I am not a lawyer, and I am not even related to any lawyers by blood more closely than first cousins, once and twice removed. And even those relatives have given up the practice of law to pursue other interests. So I won’t attempt to offer analysis, but here are short summaries of two of today’s rulings via TPM:
SCOTUS Rejects Red States’ Bid To Throw Out Obamacare
The Supreme Court rejected on Thursday Texas’ challenge to the Affordable Care Act, in a 7-2 decision. The majority opinion, written by Justice Stephen Breyer, said that the challengers had not met the procedural threshold to bring the case.
The Supreme Court’s refusal to dismantle the 2010 law marks the third time that the Affordable Care Act has survived a major Supreme Court challenge.
Only Justices Samuel Alito and Neil Gorsuch dissented in the case decided Thursday. Justice Clarence Thomas wrote a concurring opinion.
It was red state yahoos who brought the case forward, IIRC, and it sounds like it got kicked out because zeroing out the mandate (Republicans did this!) meant they couldn’t claim harm? Something like that. Is this a significant ruling that is likely to shut down future efforts to trash the ACA, or will we be playing whack-a-mole forever? I have no idea, but maybe someone who understands it can tell us.
Here’s another ruling summary via TPM:
Unanimous SCOTUS Favors Religious Freedom Over LGBTQ Rights In Foster Care Case
The Supreme Court decided Thursday that the city of Philadelphia’s decision to stop contracting with a Catholic foster care agency unless it placed children with same-sex couples violates the First Amendment.
The case was seen as a clue for how the conservative Court will treat LGBTQ rights in the future, though the justices unanimously agreed on the final judgment that the particulars of the Philadelphia case implicated religious freedom. The justices were splintered in their rationales, though, with multiple concurring opinions.
Okay, this one pisses me off because it’s unanimous. (I expect stuff like this from the court’s Bony Carrot wing but not from Justice Sotomayor, et al.) This must be more nuanced than “everyone agrees it’s permissible for churches to discriminate against LGBTQ people,” right? Please explain if you’re so inclined; decisions are embedded at linked articles.
Otherwise, open thread.
Medicaid new enrollee utilization during COVID
Wapiti
My gut (that is, I didn’t read the link) says that if the city of Philadelphia expects that children will be fostered with either straight or gay couples, then they should be within their rights to require their contractors to work accordingly. One set of contract law for religious groups, another set for everyone else, I guess.
trollhattan
1st Amendment? Is that the one stating, “One nation, under gawd”? Do not understand.
Why can church orgs act outside the law when the whim strikes them? I say pull the tax-exempt status, then say “knock yourselves out.”
Those who are about to fry, salute you. 110 predicted today, which should break all the records. Ugh.
Betty Cracker
I mean, I get that it’s “religious liberty” blah blah blah. But would SCOTUS be on board for making a city work with a white supremacist church that refused to certify non-white people as foster parents?
Ceci n est pas mon nym
It pisses me off that the right has redefined religious freedom to mean “my conservative right-wing church can impose their beliefs on you, but it doesn’t work that way for liberal churches or non-Christians”.
However, I could see that there are First Amendment issues here because the City of Philadelphia is a government, not a private employer. I am hoping at least that the ruling is very narrow. I’d like to know more about that.
catclub
Yes.
But would SCOTUS be on board for making a city work with a black supremacist church that refused to certify white people as foster parents?
No.
Lacuna Synecdoche
TPM via Betty Cracker @ Top:
Looks to me like the headline writer misspelled “Religious Bigotry”.
waspuppet
@Betty Cracker: That’s my immediate reaction: The government decades ago said racially segregated universities couldn’t get financial aid, and the court upheld it. (That’s why evangelicals suddenly started caring about abortion in the mid-1970s, when they didn’t before then.) How long before the court simply nuh-uhs that?
Kelly
I passed a life milestone yesterday. My Medicare card arrived in the mail. Signed up to transition from Kaiser Obamacare to Kaiser Medicare Advantage effective July 1. Surprised by my emotional response. Kinda like when I’ve moved to a new home.
Feathers
According to the SCOTUSblog live feed, the ruling ended up that Catholic Social Services was not a public accommodation and therefore it is a contracts case, essentially punting on the central question. Full analysis to follow
Don’t know if this has any bearing, but the Catholic adoption org will only do placements with married couples. So does being extra discriminatory get you off the hook?
MontyTheClipArtMongoose
@Betty Cracker: welcome to
earfleith.Betty Cracker
@MontyTheClipArtMongoose: I do not understand the reference.
Major Major Major Major
IANAL but I don’t see why it has to be. But I’ll be waiting for my usual SCOTUS peeps to weigh in before developing much of an opinion.
Old School
@Betty Cracker: WELCOME TO LEITH chronicles the attempted takeover of a small town in North Dakota by notorious white supremacist Craig Cobb.
Snarki, child of Loki
I, for one, look forward to the Church of Satan placing children ONLY with foster Satanists.
And that courts DEMAND that they get the contract they want, also, too.
Spanky
Thirty minutes in, and still zero lawyers commenting, near as I can tell.
dr. bloor
IANAL either, but a quick read of the decision suggests that they reversed the 3rd Circuit’s decision because specific elements of Philly’s contract language for social service agencies was botched.
Ohio Mom
Kelly:
For me, Medicare felt like crossing a finish line — I made it to health care that will be always be there (I think).
Ohio Dad has eight more months before he’s on Medicare too, and Ohio Son has been in Medicaid since elementary school (as someone with a disability). I figure this is the closest approximation to living under universal health coverage my family will ever see.
Dan B
@Major Major Major Major: My guess is that the groups and individuals that want to discriminate against LGBT people will claim the Supreme Court said it’s okay because they are religious. There will be hundreds of instances and many lawsuit working their way through the courts that Mitch packed. The fine details of this SC ruling will be lost on nearly all of the public, especially the religious right and homophobes. This ruling’s fine points will also be lost on the media, with a few exceptions.
DropDminus
Lawyer here (not a constitutional scholar though…). Quick read of the opinion leads me to believe it could have been much worse. See Alito’s screed/concurrence for what mischief the hardcore reactionaries were up to. According to the framing of the facts in the opinion, the drafting of the anti-discrimination provisions made their application subject to strict scrutiny. The discretion granted to the commissioner made the law not generally applicable (think prohibiting discrimination in public accommodation settings like restaurants or hotels) which makes it subject to more rigorous analysis. Once it was subject to the higher level of scrutiny, it was basically game over. The conservatives wanted to overrule Smith v. Oregon (that’s the law says nobody gets to smoke peyote, so having it as a sacrament that predates the founding of the country doesn’t shield you from stupid drug laws case). Roberts backed away from that so it’s a “loss” but not a catastrophe. There may be a better way to draft non discrimination provisions that can work around the holding here.
Another Scott
Both Kagan and Sotomayor joined Roberts’ majority opinion. IANAL, but it seems to be a narrow decision saying, basically, that Philly screwed up in drafting the law – giving the commissioner too much arbitrary power, and not making the requirements apply to all organizations. That apparently gave an opening to a “strict scrutiny” evaluation that meant the law couldn’t stand.
It looks like they gave implicit directions on how the law/regulation could be fixed.
Corrections welcome.
Cheers,
Scott.
Major Major Major Major
@Dan B: Same thing happened with the gay wedding cake decision, which was in fact correct: the Colorado regulators fucked up, in a way that was secondary to the issue most people think the court ruled on.
Baud
Repeating my earlier point, I love that Scalia wrote the decision that the religious conservatives now loathe.
If that had happened to us, there’s be eleventy billion blog comments and tweets about the betrayal.
Omnes Omnibus
The result in most Constitutional cases can be determined by the level of scrutiny used. Strict scrutiny means the Constitutional challenge to the law is going to be upheld almost every time. A rational basis review usually means that the law will be upheld. And intermediate scrutiny usually means that some multi-factor test is laid out and applied. Once the Court decided that foster care was not a public accommodation (thus implicating other Constitutional considerations), it became a case of analyzing the contract. The contract, on its face, would not allow CSS to provide services if they would not allow same sex couples to do so. It, however, allowed exceptions at the sole discretion of the administrator – who flat out said he would not grant one. Effectively, CSS was denied consideration for an exception. The Court basically said that the city “may not refuse to extend that [exemption] system to cases of ‘religious hardship’ without compelling reason.” This is a very narrow ruling. A contract that was written differently or an administrator who had considered the exemption and denied it with reasons may have changed the result.
Sister Golden Bear
As far as the LGBTQ decision, Shannon Mintner, a leading LGBTQ civil rights lawyer, actually sees it as a victory:
It’s apparently an extremely narrow ruling — the contract was poorly written — that applies on to Baltimore. Full analysis here.
That said, I agree with Dan B. that I fully expect the news media to get it wrong, and the haters to use it as justification for more discrimination.
Spanky
@Omnes Omnibus: Thank you!
Omnes Omnibus
@Spanky: I am sure others will soon tell me I am full of shit, but there you have it.
ETA: Or not. Neither SCOTUS thread is getting much activity.
Betsy
@Ohio Mom: Congratulations to all of you. Oh, the release from stress and worry!
I often think of how much happier Americans would be if we didn’t have to fret, always just a little bit (at best), about health coverage. I wonder what businesses people would start, and what relationships they would enjoy, and the mental health benefits to a whole nation, if Americans just had peace of mind their whole lives about this.
rikyrah
@Ohio Mom:
You are almost there, Ohio Mom :)
rikyrah
Because, of course ?
The Daily Edge (@TheDailyEdge) tweeted at 11:47 AM on Thu, Jun 17, 2021:
Clarence Thomas wrote the decision in which the Supreme Court upheld @NestleUSA’s and @Cargill’s right to profit from child slavery in Africa. https://t.co/twb9FZvFnL
(https://twitter.com/TheDailyEdge/status/1405567879907586048?s=03)
PST
My understanding, based on skimming SCOTUSblog rather than reading the opinion itself, is that Philadelphia erred erred by passing a resolution that applied only to religious organizations rather than generally to all. Its standard foster-care contract prohibits discrimination based on sexual orientation, but it it allows the the commissioner of the Department of Human Services to grant exemptions at her “sole discretion.” The resolution at issue took away that discretion only in the case of religious organizations. The justices most committed to the principle that statutes must be neutral and not favor religion had little choice but to go along in striking down one that picked on religion.
Goku (aka Amerikan Baka)
@rikyrah:
Neal Katya was apparently the attorney for Nestlé and Cargill
TriassicSands
Bigots in the U.S. are running out of places to legally exercise their (god-given) right to hate and discriminate. The Court is setting aside religion as the last refuge for bigots. Otherwise, they’ll just start shooting.
James E Powell
I read the opinions and have no problem with the decision. The City’s decision to give the commissioner discretion to grant exemptions from the regulation means that the regulation is not generally applicable, meaning applies to everyone always.
Barrett’s concurrence is a better general summary of the issues than the opinion of the court. Kind of a ‘what are we really talking about here’ summary, including a ‘floodgates’ problem if Oregon v Smith is overruled.
LongHairedWeirdo
I’ve seen it said (and it seems easily believable) that if five judges want to write a horrible decision, the remaining judges might agree to sign on to a less horrible decision. It usually means confirming some earlier ruling or idea (like requiring strict scrutiny to restrict anything that affects
Christianser, religious people), but not extending it.Marcelo
@DropDminus: Your take is the correct take. The reactionaries wanted to completely blow the doors open on “religious liberty” arguments by overturning Smith. Breyer, Sotomayor, et al offered to come in on a unanimous majority that says that this specific case fails but without a broader ruling on Smith. Roberts took that offer to craft a unanimous opinion. You can see in Barrett’s concurrence (Which Breyer put his name on) some doubt about the absolute nightmare that overturning Smith would bring about. Looks like Roberts, Barrett, and Kavanaugh weren’t ready to overturn Smith like the rest of the cons wanted to. This is also probably why a unanimous opinion took months to announce – lots of maneuverings behind the scenes.
So to me it looks like the liberals knew they were gonna lose, and offered to join a narrower ruling than let the maximalists get their way.
Omnes Omnibus
@LongHairedWeirdo: If five justices want a result, they can get it.
la caterina
@Goku (aka Amerikan Baka): EWW. I wish they would stop having him on MSNBC. He’s a hired gun for the most evil capitalists.
PaulWartenberg
Solution is simple:
Stop going to church, stop donating money to church, and elect officials who will tax churches for their political BS.
Big Red
Lesson: Don’t mess with Catholic Community Services. They are a wonderful organization in every city. Especially do not mess with them when most of the Supremes are Catholic.
Pamoya
I am a lawyer whose practice is anti-discrimination law, so I understand the Fulton decision very well. I think the best take on this out there so far is on the ACLU’s twitter account. The ACLU represented some intervenors in the case.
This is an extremely narrow ruling, that the liberal justices joined to prevent it from being MUCH MUCH worse. The much much worse cases are still to come in future terms, no doubt. That said, it still ignores the impact on kids who have no choice to be in the foster care system or not, and still chips away at the equality of LGBTQ families. It also has NOTHING to do with “religious freedom” and everything to do with Christian supremacy.
James E Powell
@Omnes Omnibus:
See, e.g., Bush v. Gore.
CAM-WA
Given the VERY broad differences of both opinion and perspectives across the two wings of the Court, my feeling is that any unanimous opinion, even if arrived at via different paths, is probably right as a matter of law (my personal opinion about what the law SHOULD say is, alas, irrelevant).
Dan B
@Major Major Major Major: That is absolutely correct “within the law” but much of life is lived adjacent to, outside, or with the most tenuous connection to law. LGBT+ people will be forced to put up with discrimination – ask any trans person, see latest Masterpiece case – or go to an uncertain outcome in court. If you are less economically blessed you endure the steady slings while the homophobes quote a Supreme Court ruling that is ambiguous to the well informed, like us, and completely anti-gay to the vast majority. I will celebrate that it could have been completely devastating but I don’t believe that this decision made life better, good and proper law or not. Public perception trumps the law until the moment it is blatantly obvious that the law has been violated egregiously. By then there us usually great harm meted out and the most vulnerable rarely see equal treatment or justice.
The rioters at Stonewall broke the law. They were mostly drag queens, trans, people of color, and others who had suffered under the law for decades. Today hairs were split but justice and equality were left in the lurch. Who will pay attention when Philadelphia modifies its contract law? The GOP and the right wing groups will have years of triumphs in red states and right wing courtrooms. They’re already crowing.
Dan B
@Sister Golden Bear: Thanks. My objection to the “very narrow legal ruling” is that this ruling does not exist in a dimension separate from a social order we actually live, love, and dream in.